Act of Sederunt (Rules of the Court of Session 1994) 1994

Warrants for intimation in family actions

49.8.—(1) In the summons in a family action, the pursuer shall insert a warrant for intimation–

(a) in an action where the address of the defender is not known to the pursuer and cannot reasonably be ascertained, to–

(i) every child of the marriage between the parties who has reached the age of 16 years, and

(ii) one of the next-of-kin of the defender who has reached that age,

unless the address of such a person is not known to the pursuer and cannot reasonably be ascertained, in the following terms:– “Warrant to intimate to (name and address) as a child of the marriage [or to (name and address) the (relationship to defender), as one of the next-of-kin of the defender].”;

(b) in an action where the pursuer alleges that the defender has committed adultery with another person, to that person, unless–

(i) that person is not named in the summons and, if the adultery is relied on for the purposes of section 1(2)(a) of the Act of 1976 (irretrievable breakdown of marriage by reason of adultery), the summons contains an averment that his or her identity is not known to the pursuer and cannot reasonably be ascertained, or

(ii) the pursuer alleges that the defender has been guilty of rape upon or incest with, that named person,

in the following terms:– “Warrant to intimate to (name and address) as a person with whom the defender is alleged to have committed adultery.”;

(c) in an action where the defender is a person who is suffering from a mental disorder, to–

(i) those persons mentioned in sub-paragraph (a)(i) and (ii), unless the address of such person is not known to the pursuer and cannot reasonably be ascertained, and

(ii) the curator bonis to the defender, if one has been appointed,

in the following terms:– “Warrant to intimate to (name and address) as a child of the marriage, (name and address) the (relationship to defender) as one of the next-of-kin of the defender and (name and address), curator bonis to the defender.”;

(d) in an action relating to a marriage which was entered into under a law which permits polygamy where–

(i) one of the decrees specified in section 2(2)of the Matrimonial Proceedings (Polygamous Marriages) Act1972(1) is sought; and

(ii) either party to the marriage in question has any spouse additional to the other party,

to any such additional spouse in the following terms:– “Warrant to intimate to (name and address) as an additional spouse of the pursuer [or defender].”;

(e) in an action of divorce, separation or declarator of nullity of marriage where the court may make an order for any parental rights in respect of a child–

(i) who is in the care of a local authority, to that local authority in the following terms:– “Warrant to intimate to the chief executive of (name and address of local authority) as the local authority having care of (name and address of child).”;

(ii) who, being a child of one party to the marriage who has been accepted as a child of the family by the other party to the marriage and who is liable to be maintained by a third party, to that third party in the following terms:– “Warrant to intimate to (name and address) as a person liable to maintain (name and address of child).”; or

(iii) in respect of whom a third party exercises such rights de facto, to that third party in the following terms:– “Warrant to (name and address) as a person who in fact exercises parental rights in respect of (name and address of child).”;

(f) in an action where the pursuer concludes for the custody of a child, to any parent or guardian of the child who is not a party to the action in the following terms:– “Warrant to intimate to (name and address) as a parent [or guardian].”;

(g) in an action where the pursuer concludes for the custody of a child and he is–

(i) not a parent of that child, and

(ii) resident in Scotland when the summons is presented for signeting,

to the local authority within which area the pursuer resides in the following terms:– “Warrant to intimate to the chief executive of (name and address of local authority) as the local authority within which area the pursuer, not being a parent of (name and address of child), resides.”;

(h) in an action which affects a child, to that child, if not a party to the action, in the following terms:– “Warrant to intimate to (name and address) as a child who may be affected by the action.”;

(i) in an action where the pursuer makes an application for an order under section 8(1)(aa) of the Act of 1985(2) (transfer of property) and–

(i) the consent of a third party to such a transfer is necessary by virtue of an obligation, enactment or rule of law, or

(ii) the property is subject to a security,

to the third party or creditor, as the case may be, in the following terms:– “Warrant to intimate to (name and address) as a person the consent of whom is required in respect of the transfer sought [or as a person who is believed to be a creditor of (name of party) in respect of the property sought to be transferred] in the (number) conclusion of this summons.”;

(j) in an action where the pursuer makes an application for an order under section 18 of the Act of 1985 (which relates to avoidance transactions), to–

(i) any third party in whose favour the transfer of, or transaction involving, the property is to be or was made, and

(ii) any other person having an interest in the transfer of, or transaction involving, the property,

in the following terms:– “Warrant to intimate to (name and address) as the person in whose favour the transfer of [or transaction involving] property referred to in the condescendence attached to this summons was made [or is to be made] [or is a person having an interest in the transfer of [or transaction involving] property referred to in the condescendence attached to this summons].”; and

(k) in an action where the pursuer makes an applicationfor an order under the Act of 1981(3)–

(i) where he is a non-entitled partner and the entitled partner has a spouse, to that spouse, or

(ii) where the application is under section 2(1)(e), 2(4)(a), 3(1), 3(2), 4, 7, 13 or 18 of that Act, and the entitled spouse or entitled partner is a tenant or occupies the matrimonial home by permission of a third party, to the landlord or the third party, as the case may be,

in the following terms:– “Warrant to intimate to (name and address) as a person with an interest in the order sought in the (number) conclusion of this summons.”.

(2) Expressions used in paragraph (1)(k) which are also used in the Act of 1981 have the same meaning as in that Act.

(3) A notice of intimation shall be attached to the copy of the summons where intimation is given on a warrant–

(a) under paragraph (1)(a) (address of defender not know), in Form 49.8–A;

(b) under paragraph (1)(b) (allegation of adultery), in Form 49.8–B;

(c) under paragraph (1)(c) (mental disorder of defender), in Form 49.8–C;

(d) under paragraph (1)(d) (polygamous marriage), in Form 49.8–D;

(e) under paragraph (1)(e)(i) or (ii) (where order may be made for any parental rights in respect of a child in care of local authority or accepted as a child of the marriage), in Form 49.8–E;

(f) under paragraph (1)(e)(iii) (where order may be made for any parental rights in respect of a child in respect of whom a third party exercises such rights de facto), in Form 49.8–F;

(g) under paragraph (1)(f) (custody sought by guardian), in Form 49.8–G;

(h) under paragraph (1)(g) (custody sought by non-parent resident in Scotland), in Form 49.8–H;

(i) under paragraph (1)(h) (action which affects a child), in Form 49.8–I;

(j) under paragraph (1)(i) (transfer of property), in Form 49.8–J;

(k) under paragraph (1)(j) (avoidance transactions), in Form 49.8–K;

(l) under paragraph (1)(k) (orders sought under the Act of 1981), in Form 49.8–L.

(4) In a family action, where the pursuer–

(a) concludes for the custody of a child;

(b) is not a parent of the child; and

(c) is not resident in Scotland when the summons is presented for signeting,

he shall, on presenting the summons for signeting, apply by motion for an order for intimation in Form 49.8–H to such local authority as the court thinks fit.

(5) Where the address of a person mentioned in paragraph (1)(b), (d), (e), (f), (g), (i), (j), (k) or (l) is not known and cannot reasonably be ascertained, the pursuer shall, immediately after the calling of the summons, apply by motion to dispense with intimation; and the court may grant that motion or make such other order as it thinks fit.

(6) Where the identity or address of a person to whom intimation of a family action is required becomes known during the course of the action, the party who would have been required to insert a warrant for intimation to that person shall apply by motion for a warrant for intimation to that person or to dispense with such intimation.

(7) In relation to paragraph (1)(h) (action which affects a child), the court may, on an application to it by motion to dispense with intimation to a child–

(a) dispense with intimation to that child on the ground that the child is not capable of forming his own views;

(b) appoint a curator ad litem to the child; or

(c) order that a specified part of the summons need not be intimated to the child.

(1)

1972 c. 38; section 2(2) was amended by the Divorce Jurisdiction, Court Fees and Legal Aid (Scotland) Act 1983 (c. 12), Schedule 1, paragraph 13, by the Law Reform (Husband and Wife) (Scotland) Act 1984 (c. 15), Schedule 1, paragraph 6, by the Family Law (Scotland) Act 1985, Schedule 1, paragraph 8 and by the Statute Law (Repeals) Act 1986 (c. 12), Schedule 1, Part I.

(2)

1985 c. 37; section 1(1)(aa) of the Act of 1985 was inserted by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40), Schedule 8, paragraph 34.

(3)

1981 c. 59.