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

PART XISIMPLIFIED DIVORCE APPLICATIONS

Application and interpretation of, and directions under, this Part

49.72.—(1) This Part applies to an application for divorce by a party to a marriage made in the manner prescribed in rule 49.73 (form of applications for simplified divorce) if, but only if—

(a)that party relies on the facts set out in section 1(2)(d) (no cohabitation for two years with consent of defender to decree), or section 1(2)(e) (no cohabitation for five years), of the Act of 1976(1);

(b)in an application under section 1(2)(d) of the Act of 1976, the other party consents to decree of divorce being granted;

(c)no other proceedings are pending in any court which could have the effect of bringing the marriage to an end;

(d)there are no children of the marriage under the age of 16 years;

(e)neither party to the marriage applies for an order for financial provision on divorce; and

(e)neither party to the marriage suffers from mental disorder.

(2) If an application ceases to be one to which this Part applies at any time before final decree, it shall be deemed to be abandoned and shall be dismissed.

(3) In this Part, “simplified divorce application” means an application mentioned in paragraph (1).

(4) The Principal Clerk shall give directions in relation to the administrative procedures to be followed on the lodging of a simplified divorce application for–

(a)the registration and service of such an application,

(b)having it brought before the court for consideration,

(c)in the event of decree of divorce being granted, for notification to the parties, and

(d)connected purposes;

and such directions shall have effect subject to the provisions of this Part.

Form of applications for simplified divorce

49.73.—(1) A simplified divorce application in which the facts set out in section 1(2)(d) of the Act of 1976 (no cohabitation for two years with consent of defender to decree) are relied on shall be made in Form 49.73–A and shall only be of effect if–

(a)it is signed by the applicant; and

(b)the form of consent in Part 2 of Form 49.73–A is signed by the party to the marriage giving consent.

(2) A simplified divorce application in which the facts set out in section 1(2)(e) of the Act of 1976 (no cohabitation for five years) are relied on shall be made in Form 49.73–B and shall only be of effect if it is signed by the applicant.

Lodging and registration of simplified divorce applications

49.74.—(1) The applicant shall send a simplified divorce application to the Deputy Principal Clerk with–

(a)an extract or certified copy of the marriage certificate; and

(b)the appropriate fee.

(2) Subject to the following rules of this Part, a simplified divorce application shall, on being registered in accordance with any directions made under rule 49.72(4), be treated as a summons in an action of divorce which has commenced.

Warrants for service or intimation of simplified divorce applications

49.75.—(1) On registration of a simplified divorce application where the address of the other party to the marriage is known, a clerk of session shall grant warrant for service of the application.

(2) On registration of an application in which the facts set out in section 1(2)(e) of the Act of 1976 (no cohabitation for five years) are relied on where the address of the other party to the marriage is not known to the applicant and cannot reasonably be ascertained–

(a)the Deputy Principal Clerk shall grant warrant for intimation of the application to–

(i)every child of the marriage, and

(ii)one of the next of kin of the other party who has reached the age of 16 years,

unless the address of such person is not known and cannot reasonably be ascertained; and

(b)the application shall thereafter be placed before the Lord Ordinary for such order under rule 16.5 (service where address of person is not known) as he thinks fit.

(3) A warrant granted under paragraph (1) or (2)(a) shall be sufficient authority for such service and intimation.

Execution of service or intimation of simplified divorce applications

49.76.—(1) Subject to the following paragraphs, service of intimation of a simplified divorce application on a warrant granted under rule 49.75 on any person whose address is known to the applicant shall be made–

(a)by the Deputy Principal Clerk by post in accordance with rule 16.4 (service by post); or

(b)by a messenger-at-arms.

(2) In the application of Part I of Chapter 16 (service and intimation) to service or intimation under this rule, the following provisions of that Part of that Chapter shall not apply:–

• rule 16.1(3) (which relates to a party lodging a certificate of service in process),

• rule 16.3(1)(b) (form of citation and certificate of service by messenger-at-arms),

• rule 16.4(2)(b) (service by post by agent),

• rule 16.4(4) (form of citation in service by post).

(3) In the case of service of a simplified divorce application on the other party to the marriage under paragraph (1), the person executing service shall complete a citation in Form 49.76–A (no cohabitation for two years with consent to divorce) or Form 49.76–B (no cohabitation for five years), as the case may be.

(4) In the case of intimation of a simplified divorce application on a person under paragraph (1), the person giving intimation shall complete a notice of intimation in Form 49.76–C.

(5) A certificate of service or intimation in Form 49.76–D (certificate by Deputy Principal Clerk) or Form 49.76–E (certificate by messenger-at-arms), as the case may be, shall be–

(a)completed by the person executing service or giving intimation;

(b)in the case of a certificate completed by a messenger-at-arms, sent to the Deputy Principal Clerk; and

(c)attached to the application by the Deputy Principal Clerk.

Opposition to simplified divorce applications

49.77.—(1) Any person on whom service or intimation of a simplified divorce application has been made may give notice by letter sent to the Deputy Principal Clerk within the period of notice that he challenges the jurisdiction of the court or opposes the grant of decree of divorce and giving the reasons for hisfi opposition to the application.

(2) Where opposition to a simplified divorce application is made under paragraph (1), the court shall dismiss the application unless it is satisfied that the reasons given for the opposition are frivolous.

(3) The Deputy Principal Clerk shall give written intimation of the decision under paragraph (2) to the applicant and the respondent.

(4) The sending of a letter under paragraph (1) shall not imply acceptance of the jurisdiction of the court.

Evidence in simplified divorce applications

49.78.—(1) Parole evidence shall not be given in a simplified divorce application.

(2) Rule 36.8 (conditions for receiving certain written statements in evidence) shall not apply in a simplified divorce application.

No reclaiming in simplified divorce applications

49.79.  A decree pronounced in a simplified divorce application may not be reclaimed against.

Applications after decree in simplified divorce applications

49.80.—(1) Any application to the court after decree of divorce has been granted in a simplified divorce application which could have been made if it had been an action of divorce shall be made by minute.

(2) On lodging a minute under paragraph (1), the minuter shall lodge a process.