Falling between stools

by John Doohan

Court rules place unnecessary obstacles in the way of separating cohabitants who wish to make a counter application for financial provision

The Journal, July 2008, page 57

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The procedure to be adopted in the sheriff court for an application under s 28 of the Family Law (Scotland) Act 2006 is governed by OCR 1993, chapter 33B: Act of Sederunt (Ordinary Cause Rules Amendment) (Family Law (Scotland) Act 2006 etc) 2006 (SSI 2006/207), para 2. That rule states that an application under  28(2) “for an order for financial provision where cohabitation (where there is no marriage) ends otherwise than by death... shall be made by initial writ”.

The rule outlines how an “application” is to be treated by the court, but what procedure applies to litigants who oppose an application? A glance at OCR, chapter 33B indicates that no procedure is outlined for a party who seeks to oppose an application and seeks an order for financial provision.

Sheriff court: no answers

Family actions are defined by OCR, rule 33.1(1). Under this rule an action under s 28 of the 2006 Act is not a family action.

OCR, rule 19.1 sets out procedure for counterclaims. Rule 19.1(1) outlines that “in any action other than a family action within the meaning of rule 33.1(1), a civil partnership action within the meaning of rule 33A.1(1) or an action of multiplepoinding a defender may counterclaim against a pursuer”.

OCR, rule 33.34 relates to defended family actions. This rule states that a defender may oppose a claim for financial provision under s 8(3) of the Family Law (Scotland) Act 1985. A defender may do so by setting out craves and averments in answer and appropriate pleas in law in his defences. Since an action under s 28 of the 2006 Act is not a family action, procedure under rule 33.34 is not available to a party who opposes an application.

Given that an application under s 28 of the 2006 Act is not a family action and OCR 33.34 is not available, it would appear that a party seeking to oppose an application under s 28 must proceed by way of a counterclaim under Chapter 19 of the Ordinary Cause Rules.

Court of Session: counterclaim excluded

What is the procedure in the Court of Session?

RCS 1994, rule 49.1(1), substituted by SSI 2005/632, defines a family action. Under rule 49.1(1)(q) a family action includes an application under s 28 (or s 29) of the 2006 Act: SSI 2006/206. RCS, rule 49.31 outlines the procedure to be adopted by a defender in a family action. The rule lists when it applies: it applies where a defender seeks to oppose any conclusion in the summons, to make claims for aliment and claims for financial provision under the 1985 Act, or a s 11 order or (further) orders under the 1985 Act, the Matrimonial Homes (Family Protection) (Scotland) Act 1981 or the Civil Partnership Act 2004, or to challenge the jurisdiction of the court. Opposition to an application under s 28

of the 2006 Act is not on the list.

RCS, rule 25.1 governs counterclaims. The rule states that a defender may lodge a counterclaim against a pursuer “in any action other than a family action within the meaning of rule 49.1(1)”. But as was seen above, an application under s 28 of the 2006 Act is an action or claim listed under rule 49.1. A counterclaim is thus ruled out. So what is the procedure for opposition to a s 28 application in the Court of Session? It would appear, by a process of elimination, that a litigant must raise a cross action.

Summary

1. The sheriff court rules allow a counterclaim for opposition to a s 28 application. The Court of Session rules do not. There should be harmonisation of procedure.

2. Neither the sheriff court nor the Court of Session rules are satisfactory in their present form.

3. It is unwieldy and expensive for Court of Session litigants to require to raise a cross action.

4. In both the sheriff court and the Court of Session procedure, to allow opposition by way of defences and answers in the process of the pursuer would be a more smooth and logical procedure to adopt. Revisal to OCR, rule 33B(1) and RCS, rule 49.31 is recommended.

John P Doohan, advocateo

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