Chapter 49 - Family actions - Part III - Defended family actions
Defences in family actions
49.31.-(1) This rule applies where the defender in a family action seeks-
(a) to oppose any conclusion in the summons;
(b) to make a claim for-
(i) aliment;
(ii) an order for financial provision within the meaning of section 8(3) of the Act of 1985; or
(iii) a section 11 order; or
(c) an order-
(i) under section 16(1)(b) or (3) of the Act of 1985(a) (setting aside or varying agreement as to financial provision);
(ii) under section 18 of the Act of 1985 (which relates to avoidance transactions); or
(iii) under the Act of 1981; or
(iv) under Chapter 3 or 4 of Part 3 of the CP Act of 2004;
(d) to challenge the jurisdiction of the court.(2) In an action to which this rule applies, the defender shall-
(a) lodge defences to the action in process; and
(b) make any claim or seek any order, as the case may be, referred to in paragraph (1) in those defences by setting out in those defences-
(i) conclusions;
(ii) averments in the answers to the condescendence in support of those conclusions; and
(iii) appropriate pleas-in-law.
Abandonment by pursuer
49.32. Notwithstanding abandonment by a pursuer, the court may allow a defender to pursue an order or claim sought in his defences; and the proceedings in relation to that order or claim shall continue in dependence as if a separate cause.
Adjustment and further procedure
49.33.-(1) Chapter 22 (making up and closing records) shall not apply to a family action.
(2) The court shall, 14 days after the date on which defences were lodged, or a minute by a person on whom intimation has been made under rule 49.8, 49.9, or 49.15 was lodged, pronounce an interlocutor allowing the parties a proof of their respective averments.
(a) 1985 c.37.
(3) Notwithstanding the pronouncement of an interlocutor under paragraph (2), the parties may adjust their respective pleadings until 28 days before the diet of proof; and any such adjustments shall be written on the summons, defences or minute, as the case may be.
(4) Not earlier than 28 days after the allowance of proof, the court may, on cause shown, withdraw the allowance of proof and appoint the action to the Procedure Roll.
(5) The pursuer shall, within 7 days after the end of the adjustment period under paragraph (3) or the appointment of the action to the Procedure Roll, as the case may be-
(a) subject to rule 49.68 (procedure for minutes in causes under the Act of 1981) or rule 49.71E(a) (procedure for minutes in causes under Chapters 3 and 4 of Part 3 of the CP Act of 2004) as the case may be, make up a copy of the adjusted pleadings in the form of a record;
(b) send not less than three copies of the record to every other party; and
(c) not later than 48 hours before the diet of proof or hearing on the Procedure Roll, as the case may be, lodge two copies of the record in process.
Late appearance by defenders
49.34.-(1) In a family action, the court may, at any time while the action is depending, make an order with such conditions, if any, as it thinks fit, allowing a defender-
(a) to lodge defences to the action; or
(b) to appear and be heard at a diet of proof although he has not lodged defences, but he shall not, in that event, be allowed to lead evidence without the pursuer's consent.(2) Where the court makes an order under paragraph (1)(a), the pursuer may recall a witness already examined or lead other evidence whether or not he closed his proof before that order was made.
(a) Rule 49.71E is inserted by paragraph 2(23) of this Act of Sederunt.
