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Chapter 49 - Family actions - Part I - General provisions

Interpretation of this Chapter
49.1.-(1)  In this Chapter, “family action” means-

(a)    an action of divorce;
(b)   an action of dissolution of a civil partnership;
(c)    an action of separation of spouses or of civil partners;
(d)   an action of declarator of nullity of marriage or civil partnership;
(e)    an action of declarator of marriage;
(f)    an action of declarator of legitimacy;
(g)   an action of declarator of illegitimacy;
(h)   an action of declarator of parentage;
(i)     an action of declarator of non-parentage;
(j)     an action of declarator of legitimation;
(k)    an action or application for, or in respect of, an order under section 11 of the Children (Scotland) Act 1995( a) (court orders relating to parental responsibilities etc.) except a petition for the appointment of a judicial factor;
(l)     an action of, or application for or in respect of, aliment;
(m)   an action or application for financial provision after a divorce or annulment in an overseas country with the meaning of Part IV of the Matrimonial and Family Proceedings Act 1984(b );
(n)   an action or application for financial provision after a dissolution or annulment of a civil partnership in an overseas country within the meaning of section 125 of and Schedule 11 to the Civil Partnership Act 2004(c );
(o)   an action or application for an order under the Matrimonial Homes (Family Protection) (Scotland) Act 1981(d );
(p)   an action or application for an order under Chapter 3 or 4 of Part 3 of the Civil Partnership Act 2004;
(q)   an application under section 28 or 29 of the Family Law (Scotland) Act 2006 (financial provision for former co-habitants).

(2)  In this Chapter, unless the context otherwise requires–
“the Act of 1975” means the Children Act 1975(e );
“the Act of 1976” means the Divorce (Scotland) Act 1976( f);
“the Act of 1973” means the Domicile and Matrimonial Proceedings Act 1973(g );
“the Act of 1981” means the Matrimonial Homes (Family Protection) (Scotland) Act 1981;
“the Act of 1985” means the Family Law (Scotland) Act 1985(h );
“the Act of 1995” means the Children (Scotland) Act 1995;
“the Act of 2004” means the Gender Recognition Act 2004( i);
“the CP Act of 2004” means the Civil Partnership Act 2004;
“civil partnership” has the same meaning as in section 1(1) of the CP Act of 2004;
“contact order” has the same meaning as in section 11(2)(d) of the Act of 1995;
“corrected gender recognition certificate” means a certificate issued under section 6(4) of the Act of 2004;
“dissolution of a civil partnership” means a decree granted under section 117(2) of the CP Act of 2004;
“full gender recognition certificate” and “interim gender recognition certificate” have the same meanings as in section 25 of the Act of 2004;
“local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994(j );
“mental disorder” has the same meaning as in section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003( k);
“action for declarator of nullity of a civil partnership” means an action for declarator that a civil partnership is void within the meaning of section 123 of the CP Act of 2004;
“order for financial provision” means, except in Part VII and VIIA of this Chapter (financial provision after overseas divorce, dissolution of a civil partnership, or annulment of marriage or civil partnership), an order mentioned in section 8(1) of the Act of 1985;
“parental responsibilities” has the same meaning as in section 1(3) of the Act of 1995;
“parental rights” has the same meaning as in section 2(4) of the Act of 1995;
“residence order” has the same meaning as in section 11(2) of the Act of 1995;
“section 11 order” means an order under section 11 of the Act of 1995(l );
“action of separation of civil partners” means an action for decree under section 120 of the CP Act of 2004. 

(3)  For the purposes of rule 49.2(m ) (averments in certain family actions about other proceedings) and rule 49.3(n ) (averments where section 11 order sought), and in relation to proceedings in another jurisdiction, Schedule 3 to the Act of 1973(o ) (sisting of consistorial actions in Scotland) and rule 49.18A (applications for sist in actions involving civil partnerships), proceedings are continuing at any time after they have commenced and before they are finally disposed of.

Averments in certain family actions about other proceedings

49.2.-(1)  This rule applies to an action of divorce, separation, declarator of marriage, declarator of nullity of marriage, dissolution of a civil partnership, separation of civil partners or declarator of nullity of a civil partnership.

(2)  In an action to which this rule applies, the pursuer shall state in the condescendence of the summons-
(a)   whether to his knowledge any proceedings are continuing in Scotland or in any other country in respect of the marriage or civil partnership to which the summons relates or are capable of affecting its validity or subsistence; and
(b)   where such proceedings are continuing-
      (i)    the court, tribunal or authority before which the proceedings have been commenced;
      (ii)   the date of commencement;
      (iii)  the names of the parties;
      (iv)  the date, or expected date of any proof (or its equivalent), in  the proceedings; and
      (v)   such other facts as may be relevant to the question of whether or not the action in the Court of Session should be sisted under Schedule 3 to the Act of 1973, or rule 49.18A.

(3)  Where-
(a)   such proceedings are continuing;
(b)   the action in the Court of Session is defended; and
(c)   either-
      (i)    the summons does not contain the statement referred to in  paragraph (2)(b), or
      (ii)   the particulars mentioned in paragraph (2)(b) as set out in the summons are incomplete or incorrect,
any defences or minute, as the case may be, lodged by any person to the action shall include that statement and, where appropriate, the further or correct particulars mentioned in paragraph (2)(b).

Averments where section 11 order sought

49.3.-(1)  A party to a family action, who makes an application in that action for a section 11 order in respect of a child, shall include in his pleadings-

(a)   where that action is an action of divorce, separation declarator of nullity of marriage, dissolution of a civil partnership, separation of civil partners or declarator of nullity of a civil partnership averments giving particulars of any other proceedings known to him, whether in Scotland or elsewhere and whether concluded or not, which relate to the child in respect of whom the section 11 order is sought;
(b)   in any other family action-
(i)    the averments mentioned in sub-paragraph (a); and
(ii)   averments giving particulars of any proceedings known to him which are continuing, whether in Scotland or elsewhere, and which relate to the marriage or civil partnership of the parents or either of the parents of that child.

(2)  Where such other proceedings are continuing or have taken place and the averments of the applicant for such a section 11 order-
(a)   do not contain particulars of the other proceedings, or
(b)   contain particulars which are incomplete or incorrect,
 any defences or minute, as the case may be, lodged by any person to the family action shall include such particulars or such further or correct particulars as are known to him.

(3)  In paragraph (1)(b)(ii), “child” includes a child of the family within the meaning assigned in section 42(4) of the Family Law Act 1986(p ).

Averments where identity or address of person not known

49.4.       In a family action, where the identity or address of any person referred to in rule 49.8 as a person in respect of whom a warrant for intimation requires to be applied for is not known and cannot reasonably be ascertained, the party required to apply for the warrant shall include in his pleadings an averment of that fact and averments setting out what steps have been taken to ascertain the identity or address, as the case may be, of that person.

Averments about maintenance orders

49.5.       In a family action in which an order for aliment or periodical allowance is sought, or is sought to be varied or recalled, by any party, the pleadings of that party shall contain an averment stating whether and, if so, when and by whom a maintenance order (within the meaning of section 106 of the Debtors (Scotland) Act 1987)(q ) has been granted in favour of or against that party or any other person in respect of whom the order is sought.

Averments where aliment sought for a child

49.6.-(1)  In this rule-

“the Act of 1991” means the Child Support Act 1991(r );
“child” has the meaning assigned in section 55 of the Act of 1991;
“conclusion relating to aliment” means-
(a)   for the purposes of paragraph (2), a conclusion for decree of aliment in relation to a child or for recall or variation of such a decree; and
(b)   for the purposes of paragraph (3), a conclusion for decree of aliment in relation to a child or for recall or variation of such a decree or for the variation or termination of an agreement on aliment in relation to a child;
“maintenance assessment” has the meaning assigned in section 54 of the Act of 1991.

(2)  A family action containing a conclusion relating to aliment to which section 8(6), (7), (8) or (10) of the Act of 1991 (top up maintenance orders) applies shall-

(a)   include averments stating, where appropriate-
      (i)    that a maintenance assessment under section 11 of that Act is in  force;
      (ii)   the date of the maintenance assessment;
      (iii)  the amount and frequency of periodical payments of child support maintenance fixed by the maintenance assessment; and
      (iv)  the grounds on which the sheriff retains jurisdiction under  section 8(6), (7), (8) or (10) of that Act; and
(b)   unless the court on cause shown otherwise directs, be accompanied by any document issued by the Secretary of State to the party intimating the making of the maintenance assessment referred to in sub-paragraph (a).

(3)  A family action containing a conclusion relating to aliment to which section 8(6), (7), (8) or (10) of the Act of 1991 does not apply, shall include averments stating-
(a)   that the habitual residence of the absent parent, person with care or qualifying child, within the meaning of section 3 of that Act, is furth of the United Kingdom;
(b)   that the child is not a child within the meaning of section 55 of that Act; or
(c)   the grounds on which the court retains jurisdiction.

(4)  In an action for declarator of non-parentage or illegitimacy-
(a)   the summons shall include an article of condescendence stating whether the pursuer previously has been alleged to be the parent in an application for a maintenance assessment under section 4, 6 or 7 of the Act of 1991 (applications for maintenance assessment); and
(b)   where an allegation of paternity has been made against the pursuer, the Secretary of State shall be named as a defender in the action.

(5)  A family action involving parties in respect of whom a decision has been made in any application, review or appeal under the Act of 1991 relating to any child of those parties, shall-
(a)   include averments stating that such a decision has been made and giving details of that decision; and
(b)   unless the court on cause shown otherwise directs, be accompanied by any document issued by the Secretary of State to the parties intimating that decision.

Warrants for arrestment or inhibition on dependence

49.7.-(1)  A warrant for inhibition or arrestment on the dependence in a family action or in respect of a claim to which section 19 of the Act of 1985 (action for aliment or claim for order for financial provision) applies shall be applied for by motion.

(2)  A certified copy of the interlocutor granting warrant for diligence applied for under paragraph (1) shall be sufficient authority for execution of the diligence.

(3)  A certified copy of the interlocutor containing a warrant for inhibition granted under this rule and an execution of service of it may be registered in the Register of Inhibitions and Adjudications.

(4)  A notice of the certified copy of the interlocutor containing a warrant for inhibition granted under this rule may be registered under section 155 of the Titles to Land Consolidation (Scotland) Act 1868(s ) (inhibitions to take effect from date of registration of notice); and such registration shall have the same effect as registration of a notice under that section.

Warrants for intimation in family actions

49.8.-(1)  Subject of paragraphs (5) and (8), 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, or child who has been accepted by both partners of a civil partnership as a child of the family, 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) as a child who has been accepted by both partners of a civil partnership as a child of the family][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 reasonable (sic)  be ascertained;
      (ii)   any person holding the office of curator bonis to the defender, if one has been appointed; and
      (iii)  any person holding the office of guardian, or continuing or welfare attorney to the defender under or by virtue of the Adults with Incapacity (Scotland) Act 2000( t ), if one has been appointed,
in the following terms:– “Warrant to intimate to (name and address) as a child of the marriage [or to (name and address) as a child who has been accepted by both partners of a civil partnership as a child of the family], (name and address) the (relationship to the defender) as one of the next-of-kin of the defender and (name and address) guardian [or continuing [or welfare] attorney] 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) Act 1972( u) 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, declarator of nullity of marriage, dissolution of a civil partnership, separation of civil partners or declarator of nullity of a civil partnership where the court may make a section 11 order 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 or is a child of one partner in a civil partnership who has been accepted by both partners as a child of the family, 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 relation to whom a third party in fact exercises care or control, to that third party in the following terms:– “Warrant to intimate to (name and address) as a person who in fact exercises care or control of (name and address of child).”;
(f)    in an action where the pursuer concludes for a section 11 order, 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 a residence order in respect 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 includes a conclusion for a section 11 order, to the child to whom the section 11 order would relate, 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( v) (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 application for an order under the Act of 1981–
      (i)     where he is a non-entitled partner and the entitled partner has a spouse, or civil partner, to that spouse or civil partner, 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.”
(l) in an action where the pursuer makes an application for an order under –
      (i)    section 8(1)(ba) of the Act of 1985 (orders under section 12A of the Act of 1985 for pension lump sum), or
      (ii)   section 8(1)(baa) of that Act (pension sharing orders),
to the person responsible for the pension arrangement, in the following terms:- “Warrant to intimate to (name and address) as the person responsible for the pension arrangement in respect of which an order is sought in the (number) conclusion of this summons.”.
(m)  in an action where the pursuer makes an application for an order under Chapter 3 of Part 3 of the CP Act of 2004 where the application is under section 102(1)(e), 102(4)(a), 103(1), 103(2), 104, 107 or 112 of that Act and the entitled civil partner is a tenant or occupies the family 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”;
(n)   in an action where the pursuer makes an application for an order under section 29(2) of the Act of 2006 (application by survivor for provision on intestacy) to any person having an interest in the deceased’s net intestate estate, in the following terms:-  “Warrant to intimate to (name and address) as a person having an interest in the deceased’s net intestate estate referred to in the condescendence attached to this summons”.

(2)  Expressions used in-
      (i)    paragraph (l)(k) which are also used in the Act of 1981;
      (ii)   paragraph (l)(m) which are also used in the CP Act of 2004;  and
      (iii)  paragraph (l)(n) which are also used in section 29 of the Act of 2006,
have the meanings given in those Acts, or that section, as the case may be.

(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 known), 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 section 11 order may be made 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 section 11 order may be made in respect of a child in relation to whom a third party in fact exercises care or control), in Form 49.8-F;
(g)   under paragraph (1)(f) (section 11 order sought by guardian), in Form 49.8-G;
(h)   under paragraph (1)(g) (residence order sought by non-parent resident in Scotland), in Form 49.8-H;
(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.
(m)  under-
       (i)    paragraph (1)(l)(i) (orders for pension lump sums) in Form 49.8-M;  and
       (ii)   paragraph (1)(l)(ii) (person sharing orders), in Form 49.8MA;
(n)    under paragraph (l)(m) (order sought under Chapter 3 of Part 3 of the CP Act of 2004), in Form 49.8-0;  and
(o)    under paragraph (l)(n) (order under section 29 of the Act of 2006), in Form 49.8-P.

(4)  In a family action, where the pursuer-
(a)   concludes for a residence order in respect 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) or (m) 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), a copy of the summons shall not be intimated to the child but a notice of intimation shall be intimated to him in Form 49.8-N.

(8)  Where a pursuer considers that a warrant for intimation to a child under paragraph (1)(h) is inappropriate, he shall-
(a)   apply by motion to dispense with intimation to that child;  and
(b)   include in the condescendence of the summons averments setting out the reasons why such intimation is inappropriate,
and the court may dispense with such intimation or make such other order as it thinks fit.

Intimation where relevant association

49.9.-(1)  In a family action where the pursuer alleges an association as defined in paragraph (4) between the defender and another named person, the pursuer shall, when the summons is presented for signeting, apply by motion for an order for intimation to that person or to dispense with such intimation.

(2)  In determining a motion under paragraph (1), the court may-
(a)   make such order for intimation as it thinks fit; or
(b)   dispense with intimation; and
(c)   where it dispenses with intimation, order that the name of that person be deleted from the condescendence of the summons.

(3)  Where intimation is ordered under paragraph (2), a notice of intimation in Form 49.9 shall be attached to the copy of the summons to be intimated.

(4)  In paragraph (1), “relevant association” means sodomy, incest or any homosexual relationship, and where the family action is in relation to a civil partnership shall include any heterosexual relationship.

Productions in action of divorce, dissolution of civil partnership, or where section 11 order may be made

 49.10.-(1)  There shall be lodged as a production with the principal writ when first lodged in process–

(a)   in an action of divorce–
(i)    an extract or certified copy of the relevant entry in the register of marriages; and
(ii)   where an action relies on section 1(1)(b) of the Act of 1976 (grounds of divorce: interim gender recognition certificate)(w ), the interim gender recognition certificate or a certified copy of it;
(b)   in an action of dissolution of a civil partnership–
(i)    an extract or certified copy of the relevant entry in the civil partnership register; and
(ii)   where the action relies on section 117(2)(b) of the CP Act of 2004 (grounds for dissolution of civil partnership: interim gender recognition certificate), the interim gender recognition certificate or a certified copy of it; and
(c)   in a family action in which the court may make a section 11 order, an extract or certified copy of the relevant entry in the register of births.

(2)  In the application of sub-paragraph (a) of paragraph (1) to an action of divorce, or sub-paragraph (b) of paragraph (1) in an action of dissolution of a civil partnership, where the address of the defender is not known, the documents to be lodged under those sub-paragraphs, as the case may be, shall be obtained and dated within three months before the date on which it is lodged.

Execution of service on, or intimation to, local authority

49.11.-(1)  Where a local authority referred to in rule 49.8(1)(g) (residence order sought by non-parent resident in Scotland) or rule 49.8(4) (residence order sought by non-parent not resident in Scotland) is called as a defender in a summons at the time of signeting, service of the summons on that local authority shall be executed within seven days after the date of signeting.

                (2)  Where in a family action-
(a)   to which rule 49.8(1)(g) applies, or
(b)   in which a motion under rule 49.8(4) is required,
the local authority referred to in that provision is called as a defender in the summons at the time of signeting, a notice in Form 49.8-H shall be attached to the copy of the summons served on that local authority unless the court otherwise orders.

                (3)  In any family action, the court may, if it thinks fit, order intimation to a local authority, and such intimation shall be in Form 49.8-H.

                (4)  Where, by virtue of paragraph (3) of this rule or rule 49.8(1)(g), 49.8(4) or 49.15(3), intimation of an application for a section 11 order is to be made to a local authority, intimation to that local authority shall be given within seven days after the date of signeting or order for intimation, as the case may be; and a notice in Form 49.8-H shall be attached to the copy of the summons intimated to that local authority.

Notice of actions by advertisement

49.12.     Where notice of a family action is given by advertisement under rule 16.5 (service where address of person is not known), the period of notice shall be 21 days from the date of publication of the advertisement unless the court otherwise orders.

Service in cases of mental disorder of defender

49.13.-(1)  In a family action where the defender suffers or appears to suffer from mental disorder and is resident in a hospital or other similar institution, service of the summons shall be executed in accordance with rule 16.4 (service by post) addressed to the medical officer in charge of that hospital or institution; and there shall be included with the copy of the summons-
(a)   any notice required by rule 49.14(1) (notices in certain actions of divorce or separation) or by rule 49.14A(1) (notices in certain actions of dissolution of civil partnership or separation of civil partners);
(b)   a request in Form 49.13-A requesting the medical officer to-
(i)    deliver and explain the summons, citation and any notice or form of notice of consent required under rule 49.14(1) or rule 49.14A(1); or
(ii)   certify that such delivery or explanation would be dangerous to the health or mental condition of the defender; and
(iii)  complete the certificate in Form 49.13-B; and
(c)   a stamped envelope addressed for return of that certificate to the  pursuer or his agent, if he has one.

(2)  The medical officer referred to in paragraph (1) shall send the certificate in Form 49.13-B duly completed to the pursuer or his agent, as the case may be.

                (3)  The certificate mentioned in paragraph (2) shall be attached to the summons when it is lodged for calling.

                (4)  Where such a certificate bears that the summons has not been delivered to the defender, the court may, at any time while the action is depending-
(a)   order such further medical inquiry, and
(b)   make such order for further service or intimation,
 as it thinks fit.

Notices in certain actions of divorce or separation

49.14.-(1)  In the following actions of divorce or separation, there shall be attached to the copy of the summons served on the defender-

(a)   in an action relying on section 1(2)(d) of the Act of 1976(a) (no cohabitation for one year with consent of defender to decree)-
       (i)    which is an action of divorce, a notice in Form 49.14-A and a form of notice of consent in Form 49.14-B;
       (ii)   which is an action of separation, a notice in Form 49.14-C and a form of notice of consent in Form 49.14-D;
(b)   in an action relying on section 1(2)(e) of the Act of 1976 (no cohabitation for two years)-
      (i)    which is an action of divorce, a notice in Form 49.14-E;
      (ii)   which is an action of separation, a notice in Form 49.14-F;
(c)   in an action relying on section 1(1)(b) of the Act of 1976 (grounds for divorce:  interim gender recognition certificate), a notice in Form 49.14-G.

(2)  The certificate of service of a summons in an action mentioned in paragraph (1) shall state which notice or form mentioned in paragraph (1) has been included with the summons.

Notices in certain actions of dissolution of civil partnership or separation of civil partners

49.14A.-(1).  In the following actions of dissolution of civil partnership or separation of civil partners, there shall be attached to the copy of the summons served on the defender–

(a)   in an action relying on section 117(3)(c) of the CP Act of 2004 (no cohabitation for one year with consent of defender to decree)–
      (i)    which is an action of dissolution of a civil partnership, a notice in Form 49.14A-A and a form of notice of consent in Form 49.14A-B;
      (ii)   which is an action of separation of civil partners, a notice in Form 49.14A-C and a form of notice of consent in Form 49.14A-D;
(b)   in an action relying on section 117(3)(d) of the CP Act of 2004 (no cohabitation for two years)–
      (i)    which is an action of dissolution of a civil partnership, a notice in Form 49.14A-E;
      (ii)   which is an  action of separation of civil partners, a notice in Form 49.14A-F;
(c)   in an action relying on section 117(2)(b) of the CP Act of 2004 (grounds of dissolution: interim gender recognition certificate), a notice in Form 49.14A-G.

(2)  The certificate of service of a summons in an action mentioned in paragraph (1) shall state which notice or form mentioned in paragraph (1) has been included with the summons.

Orders for intimation by the court

49.15.-(1)  In any family action, the court may, at any time-

(a)   subject to paragraph (2), order intimation to be made to such person as it thinks fit;
(b)   postpone intimation, where it considers that such postponement is appropriate and in that case, the court shall make such order in respect of postponement of intimation as it thinks fit; or
(c)   dispense with intimation, where it considers that such dispensation is appropriate.

(2)  Where the court is considering whether to make a section 11 order by virtue of section 12 of the Act of 1995 (restrictions on decrees for divorce, separation, annulment, dissolution of civil partnership, separation of civil partners, or annulment of civil partnership affecting children), it shall, subject to paragraph (1)(c) and without prejudice to paragraph (1)(b) of this rule, order intimation to the child to whom the section 11 order would relate unless-
(a)   intimation has been given to the child under rule 49.8(7); or
(b)   the court considers that the child is not of sufficient age or maturity to express his views.

(3)  Where a party makes an application or averment in a family action which, had it been made in a summons when presented for signeting, would have required a warrant for intimation under rule 49.8, that party shall apply by motion for a warrant for intimation or to dispense with such intimation; and rule 49.8 shall, with the necessary modifications, apply to a warrant under this paragraph as it applies to a warrant under that rule.

Interested persons entering process

49.16.-(1)  A person on whom intimation has been made of a family action or an application in a family action, may apply by minute for leave to be sisted as a party and to lodge defences, answers or a minute, as the case may be-

(a)   where the intimation was made on a warrant in a summons, within 7 days after the summons is lodged for calling; and
(b)   in any other case, within the period of notice.

(2)  Where the court grants a motion under paragraph (1), it shall make such order for further procedure as it thinks fit.

Appointment of curators ad litem to defenders

49.17.-(1)  This rule applies to an action of divorce, separation, dissolution of a civil partnership, or separation of civil partners, where it appears to the court that the defender is suffering from a mental disorder.

(2)  In an action to which this rule applies, the court shall, after the expiry of the period for lodging defences-
(a)   appoint a curator ad litem to the defender; and
(b)   where the facts set out in section 1(2)(d) of the Act of 1976 or section 117(3)(c) of the CP Act of 2004 (no cohabitation for one year with consent of defender to decree) are relied on-
      (i)    make an order for intimation of the ground of the action to the Mental Welfare Commission for Scotland; and
      (ii)   include in such an order a requirement that the Commission sends to the Deputy Principal Clerk a report indicating whether in its opinion the defender is capable of deciding whether or not to give consent to the granting of decree.

(3)  Within 7 days after the appointment of a curator ad litem under paragraph (2)(a), the pursuer shall send to him a copy of the summons and any defences lodged (including any adjustments and amendments).

(4)  On receipt of a report required under paragraph (2)(b)(ii), the Deputy Principal Clerk shall-
(a)   cause the report to be lodged in process; and
(b)   give written intimation that this has been done to-
      (i)    the pursuer;
      (ii)   the agent for the defender, if known; and
      (iii)  the curator ad litem

(5)  The curator ad litem shall lodge in process one of the writs mentioned in paragraph (6)-
(a)   within 14 days after the report required under paragraph (2)(b)(ii) has been lodged in process; or
(b)   where no such report is required, within 21 days after the date of his appointment under paragraph (2)(a).

(6)  The writs referred to in paragraph (5) are-
(a)   defences to the action;
(b)   a minute adopting defences already lodged in process; and
(c)   a minute stating that the curator ad litem does not intend to lodge defences.

(7)  Notwithstanding that he has lodged a minute stating that he does not intend to lodge defences, a curator ad litem may appear at any stage of the action to protect the interests of the defender.

(8)  If, at any time, it appears to the curator ad litem that the defender is not suffering from mental disorder, he may report that fact to the court and seek his own discharge.

(9)  The pursuer shall be responsible, in the first instance, for payment of the fees and outlays of the curator ad litem incurred during the period from his appointment until-
(a)   he lodges a minute stating that he does not intend to lodge defences;
(b)   he decides to instruct the lodging of defences or a minute adopting defences already lodged; or
(c)   being satisfied after investigation that the defender is not suffering from mental disorder, he is discharged.

Applications for sist

49.18.     An application for a sist, or the recall of a sist, under Schedule 3 to the Domicile and Matrimonial Proceedings Act 1973(x ) shall be made by motion.

Applications for sist in actions involving civil partnerships

49.18A.-(1)  Schedule 3 to the Act of 1973(y ) (sisting of consistorial actions in Scotland) shall apply to actions for dissolution of civil partnerships, separation of civil partners or declarator of nullity of civil partnerships subject to the following modifications–

(a)   for “consistorial action”, wherever it appears, there shall be substituted “action concerning a civil partnership”;
(b)   for “divorce”, wherever it appears there shall be substituted “dissolution of a civil partnership”;
(c)   for “separation”, wherever it appears, there shall be substituted “separation of civil partners”;
(d)   for “declarator of nullity of marriage”, wherever it appears, there shall be substituted “declarator of nullity of a civil partnership”;
(e)   for “marriage”, wherever it appears, there shall be substituted “civil partnership”;
(f)    for “spouse”, wherever it appears, there shall be substituted “civil partner”;
(g)   in paragraph 2 “declarator of marriage” shall be omitted;
(h)   in paragraph 8(b) for “marriage was contracted” there shall be substituted “civil partnership was registered”;
(i)    in paragraphs 4(a), 7, and 9(4) “or in a sheriff court” shall be omitted;
(j)    in paragraph 8 “or in the Sheriff Court” shall be omitted;
(k)   in paragraph 9(1) “or in a sheriff court” shall be omitted.

(2) An application for a sist or a recall of a sist under Schedule 3 to the Act of 1973 as it applies under paragraph (1) shall be made by motion.

Notices of consent to divorce, separation, dissolution of civil partnership or separation of civil partners

49.19.-(1)  Where, in an action of divorce, or separation in which the facts in section 1(2)(d) of the Act of 1976, or dissolution of a civil partnership or separation of civil partners in which the facts in section 117(3)(d) of the CP Act of 2004, (no cohabitation for one year with consent of defender to decree) are relied on, the defender wishes to consent to the grant of decree–

(a)    of divorce or separation he shall do so by giving notice in writing in Form 49.14-B (divorce) or Form 49.14-D (separation), as the case may be; or
(b)    of dissolution of a civil partnership or separation of civil partners, he shall do so by giving notice in writing in Form 49.14A-B (dissolution) or Form 49.14A-D (separation of civil partners), as the case may be;
to the Deputy Principal Clerk.

(2)  The evidence of one witness shall be sufficient for the purpose of establishing that the signature on a notice of consent under paragraph (1) is that of the defender.

(3)  In an action of divorce, separation, dissolution of a civil partnership, or separation of civil partners where the summons includes for the purposes of section 1(2)(d) of the Act of 1976, or section 117(3)(d) of the CP Act of 2004, as the case may be, an averment that the defender consents to the grant of decree, the defender may give notice by letter to the Deputy Principal Clerk stating that he has not so consented or that he withdraws any consent which he has already given.

(4)  On receipt of a letter under paragraph (3), the Deputy Principal Clerk shall-
(a)   cause the letter to be lodged in process; and
(b)   give written intimation of the terms of the letter to the pursuer.

(5)  On receipt of an intimation under paragraph (4)(b), the pursuer may, within 14 days after the date of the intimation, if none of the other facts mentioned in section 1(2) of the Act of 1976 or section 117(3) of the CP Act of 2004,  as the case may be, is averred in the summons, apply by motion for the action to be sisted.

(6)  If no such motion is enrolled, the pursuer shall be deemed to have abandoned the action and the action shall be dismissed.

(7)  If a motion under paragraph (5) is granted and the sist is not recalled or renewed within a period of six months from the date of the interlocutor granting the sist, the pursuer shall be deemed to have abandoned the action and the action shall be dismissed.

Consents to grant of custody

49.20.-(1)  In a family action, in relation to any matter affecting a child, where that child has-

(a)   returned Form 49.8-N, or
(b)   otherwise indicated to the court a wish to express views on a matter affecting him,
the court shall not grant any order unless an opportunity has been given for the views of that child to be obtained or heard.

(2)  Where a child has indicated his wish to express his views, the court shall order such steps to be taken as it considers appropriate to ascertain the views of that child.

(3)  The court shall not grant an order in a family action, in relation to any matter affecting a child who has indicated his wish to express his views, unless due weight has been given by the court to the views expressed by that child, having regard to his age and maturity.

49.21.     Revoked by S.I. 1996 No.2587

Appointment of local authority or reporter to report on a child

49.22.-(1)  This rule applies where, at any stage of a family action, the court appoints-

(a)   a local authority, whether under section 11(1) of the Matrimonial Proceedings (Children) Act 1958(z ) (reports as to arrangements for future care and upbringing of children) or otherwise, or
(b)   another person (referred to in this rule as a "reporter"), whether under a provision mentioned in sub-paragraph (a) or otherwise,
to investigate and report to the court on the circumstances of a child and on proposed arrangements for the care and upbringing of the child.

(2)  On making an appointment referred to in paragraph (1), the court shall direct that the party who sought the appointment or, where the court makes the appointment at its own instance, the pursuer or minuter, as the case may be, shall-
(a)   instruct the local authority or reporter; and
(b)   be responsible, in the first instance, for the fees and outlays of the local authority or reporter appointed.

(3)  Where a local authority or reporter is appointed-
(a)   the party who sought the appointment, or
(b)   where the court makes the appointment at its own instance, the pursuer or minuter, as the case may be,
 shall, within seven days after the date of the appointment, intimate the name and address of the local authority or reporter to any local authority to which intimation of the family action has been made.

(4)  The local authority or reporter, as the case may be, shall, on completion of a report referred to in paragraph (1), send the report, and a copy of it for each party, to the Deputy Principal Clerk.

(5)  On receipt of such a report, the Deputy Principal Clerk shall-
(a)   cause the report to be lodged in process; and
(b)   give written intimation to each party that this has been done and that he may uplift a copy of the report from process.

(6)  Where a local authority or reporter has been appointed to investigate and report in respect of a child, an application for a section 11 order in respect of that child shall not be determined until the report of the local authority or the reporter, as the case may be, has been lodged in process.

Referral to family mediation

49.23.     In any family action in which an order in relation to parental responsibilities or parental rights is in issue, the court may, at any stage of the action where it considers it appropriate to do so, refer that issue to a mediator accredited to a specified family mediation organisation.

Applications for orders to disclose whereabouts of children

49.24.-(1)  An application for an order under section 33(1) of the Family Law Act 1986(a1 ) (which relates to the disclosure of the whereabouts of a child) shall be made by motion.

(2)  Where the court makes an order under section 33(1) of the Family Law Act 1986, it may ordain the person against whom the order has been made to appear before it or to lodge an affidavit.

Applications in relation to removal of children

49.25.-(1)  An application for leave under section 51(1) of the Act of 1975(b1 ) (authority to remove a child from the care and possession of the applicant for a residence order) or for an order under section 35(3) of the Family Law Act 1986 (application for interdict or interim interdict prohibiting removal of child from jurisdiction)-

(a)   by a party, shall be made by motion;
(b)   by a person other than a party, shall be made by minute in the process of that action.

(2)  An application under section 35(3) of the Family Law Act 1986 need not be served or intimated.

(3)  An application under section 23(2) of the Child Abduction and Custody Act 1985(c1 ) (declarator that removal of child from United Kingdom was unlawful) shall be made-
(a)   in an action depending before the court-
(i)    by a party, in the summons, defences or minute, as the case may  be, or by motion; or
(ii)   by any other person, by minute; or
(b)   after final decree, by minute in the process of the action to which the application relates.

Intimation to local authority before supervised contact order

49.26.-(1)  Where the court, at its own instance or on the motion of a party, is considering making a contact order or an interim contact order subject to supervision by the social work department of a local authority, it shall ordain the party moving for such an order to intimate to the chief executive of that local authority (unless a party to the action and represented at the hearing at which the issue arises)-

(a)   the terms of any relevant motion;
(b)   the intention of the court to order that the contact order be supervised by the social work department of that local authority; and
(c)   that the local authority shall, within such period as the court has determined-
(i)    notify the Keeper of the Rolls whether it intends to make  representations to the court through counsel or other person  having a right of audience or in writing; and
(ii)   where it intends to make representations in writing, do so within that period.

(2)  After receiving notice or written representations, as the case may be, under paragraph (1)(c), the Keeper of the Rolls shall put the action out on the By Order Roll before the Lord Ordinary on such a date as may be convenient, for the court to determine, after considering any representations of a local authority under paragraph (1), whether to order such supervision.

Joint minutes

49.27.     Where any parties have reached agreement in relation to-

(a)   a section 11 order,
(b)   aliment for a child, or
(c)   an order for financial provision,
a joint minute may be entered into expressing that agreement; and, subject to rule 49.20(3) (no order before the views of child expressed), the court may grant decree in respect of those parts of the joint minute in relation to which it could otherwise make an order, whether or not such a decree would include a matter for which there was no conclusion or crave.

Expenses of curator ad litem appointed to a child

49.27A.  Where in any family action a curator ad litem is appointed to a child, the pursuer shall be responsible, in the first instance, for payment of the fees and outlays of the curator ad litem incurred during the period from his appointment until the occurrence of any of the following events;

(a)   the lodging of a minute by the curator stating that he does not intend to lodge defences;
(b)   the curator instructing the lodging of defences or a minute adopting defences which are already lodged;  or
(c)   the discharge, before the occurrence of the events mentioned in sub-paragraphs (a) and (b), of the curator.

Corrected gender recognition certificates

49.27B-(1)  An application after final decree for a corrected gender recognition certificate under section 6 of the Act of 2004 shall be made by minute in the process of the action in which the full gender recognition certificate was issued.

(2)  Where the court issues a corrected gender recognition certificate, the Deputy Principal Clerk shall send a certified copy of the certificate to the Secretary of State.

Applications for postponement of decree under section 3A of the Act of 1976

49.27C   An application under section 3A(1) (application for postponement of decree where impediment to religious marriage exists) or section 3A(4) (application for recall of postponement) of the Act of 1976(d1 ) shall be made by minute in the process of the action to which the application relates.