Chapter 49 - Family actions - Part II - Undefended family actions
Evidence in certain undefended family actions
49.28.-(1) This rule-
(a) subject to sub-paragraph (b), applies to all family actions in which no defences have been lodged, other than a family action-
(i) for a section 11 order or for aliment;
(ii) for financial provision after an overseas divorce or annulment within the meaning of Part IV of the Matrimonial and Family Proceedings Act 1984(a); or
(a) Section 3A was inserted by the Family Law (Scotland) Act 2006 (asp 2), section 15.
(iii) for an order under the Act of 1981( );
(iv) for financial provision after overseas proceedings to dissolve or annul a civil partnership within the meaning of Schedule 11 to the CP Act of 2004; or
(v) for an order under Chapter 3 or 4 of Part 3 of the CP Act of 2004.
(b) applies to a family action in which a curator ad litem has been appointed under rule 49.17(2)(a) where the curator ad litem to the defender has lodged a minute intimating that he does not intend to lodge defences;
(c) applies to any family action which proceeds at any stage as undefended where the court so directs;
(d) applies to the merits of a family action which is undefended on the merits where the court so directs, notwithstanding that the action is defended on an ancillary matter.(2) Unless the court otherwise directs, evidence shall be given by affidavit.
(3) Unless the court otherwise directs, evidence relating to the welfare of a child shall be given by affidavit, at least one affidavit being sworn by a person other than a parent or party to the action.
(4) Evidence in the form of a written statement bearing to be the professional opinion of a duly qualified medical practitioner, which has been signed by him and lodged in process, shall be admissible in place of parole evidence by him.
(5) Rule 36.8 (lodging of certain written statements) shall not apply in an undefended family action to which this rule applies.
Procedure for decree in actions under rule 49.28
49.29.-(1) In an action to which rule 49.28 (evidence in certain undefended family actions) applies, if counsel or other person having a right of audience, on consideration of the available affidavits and supporting documents, is satisfied that a motion for decree may properly be made, he may, at any time after the expiry of the period for lodging defences, move the court by minute in Form 49.29-A to grant decree in terms of the conclusions of the summons or in such restricted terms as may be appropriate.
(2) On lodging such a minute in process, the pursuer shall-
(a) lodge in process the documents specified in the schedule to the minute; and
(b) send to the Deputy Principal Clerk, Form 49.29-B duly completed.(3) The court may, at any time after the minute and other documents referred to in paragraph (2) have been lodged, without requiring the appearance of counsel or other person having a right of audience-
(a) grant decree in terms of the motion for decree contained in the minute; or
(b) put the action out on the By Order Roll before the Lord Ordinary for such further procedure, if any, including proof by parole evidence, as the court thinks fit.(4) Notice shall be given in the rolls of all decrees granted under paragraph (3)(a).
No suspension in undefended actions of divorce or dissolution of civil partnerships
(a) 1984 c.42; Part IV was amended by the Act of 1985 (c.37), Schedule 1, paragraphs 12 and 13.
(b) 1981 c.59.49.30. A defender may not bring any proceedings for the suspension of any decree of divorce or dissolution of a civil partnership pronounced in an undefended action.
