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

PART X CAUSES UNDER THE MATRIMONIAL HOMES (FAMILY PROTECTION) (SCOTLAND) ACT 1981

Interpretation of this Part

49.64.  Unless the context otherwise requires, words and expressions used in this Part which are also used in the Act of 1981(1) have the same meaning as in that Act.

Form of applications under the Act of 1981

49.65.  Subject to any other provision in this Chapter, an application for an order under the Act of 1981 shall be made–

(a) by an action for such an order;

(b) by a conclusion in the summons or in defences, as the case may be, in any other family action; or

(c) where the application is made by a person other than a party to an action mentioned in paragraph (a) or (b), by minute in that action.

Defenders in causes under the Act of 1981

49.66.  The applicant for an order under the Act of 1981 shall call as a defender–

(a) where he is seeking an order as a spouse, the other spouse;

(b) where he is a third party making an application under section 7(1)(2) (dispensing with consent of non-entitled spouse to a dealing), or section 8(1) (payment from non-entitled spouse in respect of loan), of the Act of 1981, both spouses; and

(c) where the application is made under section 18 of the Act of 1981(3) (occupancy rights of cohabiting couples),or is one to which that section applies, the other partner.

Applications by motion under the Act of 1981

49.67.—(1) An application under any of the following provisions of the Act of 1981 shall be made by motion:–

(a) section 3(4) (interim order for regulation of rights of occupancy etc.);

(b) section 4(6) (interim order suspending occupancy rights);

(c) section 5 (variation and recall of orders regulating occupancy rights and of exclusion order);

(d) section 15(1) (order attaching power of arrest), if made after application for matrimonial interdict;

(e) section 15(2)(4) and (5) (variation and recall of matrimonial interdict and power of arrest); and

(f) the proviso to section 18(1)(5) (extension of period of occupancy rights).

(2) Written intimation of a motion under paragraph (1) shall be given not less than 7 days before the date on which the motion is enrolled–

(a) to the other spouse or partner, as the case may be;

(b) where the motion is under paragraph (1)(a), (b), (c) or (f) and the entitled spouse or partner is a tenant or occupies the matrimonial home by the permission of a third party, to the landlord or third party, as the case may be; and

(c) to any other person to whom intimation of the application was or is to be made by virtue of rule 49.8(1)(k) (warrant for intimation to certain persons in actions for orders under the Act of 1981) or 49.15 (orders for intimation by the court).

Procedure for minutes

49.68.  Where an application is made by minute under rule 49.65(c) (form of application under the Act of 1981 by a person other than a party) and answers to that minute are lodged, the minute and answers shall not be included with the other pleadings in the action in any record, but shall be made up separately in the form of a record; and rule 49.33(5)(b) and (c) (lodging etc. of records) shall apply to that record as it applies to a record under that rule.

Sist of actions to enforce occupancy rights

49.69.  Unless the court otherwise directs, the sist of an action by virtue of section 7(4) of the Act of 1981 (where action raised by non-entitled spouse to enforce occupancy rights) shall apply only to such part of the action as relates to the enforcement of occupancy rights by a non-entitled spouse.

Certificates of execution of delivery of documents to chief constable

49.70.—(1) Where an applicant is required to comply with section 15(4) or (5), as the case may be, of the Act of 1981(6) (delivery of documents to chief constable where power of arrest attached to matrimonial interdict is granted, varied or recalled), he shall, after such compliance, lodge in process a certificate of delivery in Form 49.70.

(2) Where a matrimonial interdict to which a power of arrest under section 15(1) of the Act of 1981 has been attached ceases to have effect by reason of a decree of divorce or declarator of nullity of marriage being pronounced by the court, the pursuer in the action of divorce or declarator of nullity of marriage, as the case may be, shall send–

(a) to the chief constable of the police area in which the matrimonial home is situated, and

(b) if the applicant spouse (within the meaning of section 15(6) of the Act of 1981) resides in another police area, to the chief constable of that other police area,

a copy of the interlocutor granting decree; and lodge in process a certificate of delivery in Form 49.70.

Evidence in causes under the Act of 1981

49.71.—(1) For the purposes of proof in any application for an order under the Act of 1981, evidence by affidavit shall be admissible in place of parole evidence.

(2) Rule 36.8 (conditions for receiving certain written statements in evidence) shall not apply in a cause to which paragraph (1) of this rule applies.

(1)

1981 c. 59.

(2)

Section 7(1) was amended by the Age of Legal Capacity (Scotland) Act 1991 (c. 50), Schedule 1, paragraph 37.

(3)

Section 18 was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73), section 13(9).

(4)

Section 15(2) was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40), section 64(a).

(5)

The proviso to section 18(1) of the Act of 1981 was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73), section 13(9).

(6)

Section 15(4) was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40), section 64(b).