If despite your best endeavours, things can’t be resolved by agreement, then Court proceedings have to be raised to allow matters to be resolved in litigation. Most cases arising from family breakdown are dealt with in the local Courts known as Sheriff Courts. There will be one in a town near you! Cases where there is a lot of money at stake, where questions of international law are involved, or where one party wishes to keep where they are living a secret are often dealt with in the Court of Session in Edinburgh.
The question which Court could be used has become complicated. There are more international marriages and people move around more for their jobs. However, in most cases divorces are dealt with in the Sheriff Court for the area in which either the husband or wife normally live. If only issues to do with children are to be resolved then it is usually the Court near where the children are living which is involved.
Since most cases are dealt with in the Sheriff Court, the terms used in the following discussion apply to the Sheriff Court rather than the Court of Session.
A divorce or an action to do with children starts off with a document called an Initial Writ. The person starting it is called the Pursuer and the other person is called the Defender.
This Writ states first of all what you are asking the Court for – a divorce, orders in relation to children, financial support or whatever – in short paragraphs called craves.
These are followed by a summary of the facts – the information on which you are basing these requests. Again these details are in numbered paragraphs, and are called Articles of Condescendence.
The Writ ends with statements of the legal rules you say should be used to get what you are asking for. These statements are called Pleas-in-Law.
The Writ will be signed by your solicitor as your agent and then sent to the Court involved, asking for the Court’s authority – known as a warrant – to intimate (serve) this on your partner. Sometimes other people have to be told for example, if you are saying that your partner committed adultery then the other person involved (known as the paramour) will have copies sent to them. If you are asking for the family home to be transferred to you and there is a secured loan, a copy will be sent to the lenders.
If the action affects the children a form called an F9 may have to be sent to the children. The F9 gives children the opportunity to state their views about what is being requested. It is supposed to be worded in “child friendly” language. The Court recognises that it can be difficult for even teenagers to make their views known that way. Quite often instead someone will be appointed to go and ask the children what their views are.
Usually intimation is made by your solicitor sending a copy of the Writ by recorded delivery post. If the person is not in when the postman tries to deliver the letter or if the matter is particularly urgent, the copy is delivered by a person called a Sheriff Officer. A period of time (the period of notice), normally 21 days, is allowed for the person at the receiving end to decide if they want to oppose any of what is being asked for or ask for something themselves. If they do, their solicitor will lodge a document known as a Notice of Intention to Defend and the case will become a defended (opposed) one.
If no opposition is lodged, the action is undefended and usually the person starting the action will be given what they want by the Court without any need for their attendance at Court.
The Court can give less money than is asked for if the information provided by you does not justify the amount requested.
In undefended divorce actions, if there are children under 16 or any financial matters to be sorted out the Sheriff has to have evidence from the person asking for the divorce and also from someone else which is given by way of Affidavit evidence. Affidavit evidence means that the information is set out in a formal written statement which is signed by someone in the Sheriff Court authorised to administer oaths, such as a solicitor who is a Notary Public.
Sometimes there is a need to vary an existing order to ask for orders in connection with children in a divorce again where no order was made originally. In that case the document asking for orders is a Minute and the response is called Answers.
If a Notice of Intention to Defend is sent into Court after an action starts, a date is fixed for you, your partner and the 2 solicitors to attend Court for what is called the Options Hearing. The date will be just over 3 months from when the action started. By then, you and your partner will have had the chance to put in writing the main points you wish to have considered before the decision is made. Although the rules make it clear that both parties are supposed to attend the Options Hearing, in practice in many Courts the parties are actually not expected to attend, since the Options Hearing has turned out more of a formality than was probably intended. The Sheriff usually just checks if there is still something to be decided by the court. If so, the Sheriff will fix a date in the future to hear evidence (a proof). Sometimes there might be another Options Hearing. It is very important to check with your solicitor if you do need to attend. Never assume that you do not need to turn up.
The Initial Writ is answered in a document called “Defences”. The Defences also set out any requests regarding financial claims or the arrangements for children. Once the Defences are available you both have a chance to amend your own written documents (known as Pleadings) in response to the information provided by your partner. The timetable sets out a period for this adjustment. There is also the possibility that a young person affected by the action might become involved in the case direct. His or her solicitor will then submit the necessary paperwork to become involved. Alternatively the Sheriff might decide that it would be best to appoint a Curator, usually a solicitor, to be involved in looking after the interests of a child or children or in finding out their views.
If there are decisions to be made about children usually the court will fix a Child Welfare Hearing. The procedure for these varies from court to court. Your solicitor will guide you about this. Generally it is intended to be more informal than most court hearings. The Sheriff will try to encourage parents to cooperate about arrangements for their children but failing agreement, will make decisions the parents are to follow. For the time being, decisions made at Child Welfare Hearings often end up being the longer term arrangements by agreement. Sometimes, especially if an urgent decision is needed, it is agreed that evidence from parents and their witnesses will be heard and a final decision made as part of the Child Welfare Hearing procedure. More often, if arrangements made at a succession of Child Welfare Hearings don’t resolve matters, a more formal procedure call a Proof is fixed. More about that further down.
Generally, while the adjustments are being made to the written documents negotiations between solicitors – and sometimes discussions between you and your partner – will be continuing.
If a settlement can be agreed then everyone can heave a sigh of relief and the details will be set out in a document known as a Joint Minute. This is signed by the solicitors and submitted to Court. In most cases this will eliminate any need for you to go to Court yourself. Where there are financial matters involved there may be a Separation Agreement as well as a Joint Minute. In that case you and your partner would sign the Separation Agreement.
Even if matters are agreed, in a divorce action sworn statements of evidence (Affidavits) must still be submitted to Court before the Court will grant the divorce decree and incorporating any terms of settlement which you have asked to be included in the Court Order.
In a minority of cases agreement is not reached and the Sheriff has to make the decisions. This is dealt with at an event known as a Proof.
Dates are fixed several weeks in advance for the Sheriff to hear evidence. This means that you, your partner and all your witnesses have to attend Court in order to give the Sheriff the information you each have which has a bearing on the case and which there is notice of in the written Pleadings.
The Sheriff makes a decision based on what emerges at the Proof, not what is in the written Pleadings but you won’t be allowed to bring up incidents or matters that have not been mentioned in writing. These rules are not interpreted quite as narrowly in family cases as in other types of Court actions, but they do still apply.
When you give evidence, you are first asked questions by your own solicitor. These questions are not supposed to suggest an answer – they must not be “leading” questions. So don’t be hurt if your solicitor asks you what your name is – it doesn’t mean they have forgotten, just that they are getting you into the way of answering non-leading questions!
After your solicitor is finished, your partner’s solicitor can ask you questions. This is called cross-examination.
Leading questions are allowed at this stage. The idea of cross-examination is to allow your partner’s solicitor to challenge and test what you have said, and also to ask you about things your partner wants to prove, in order to give you the chance to comment.
The same procedure applies for your witnesses and in reverse for your partner when it is your solicitor who carries out the cross-examination. Once all the evidence has been presented, the solicitors sum up the main points and relate them to the law which applies. The Sheriff could decide things then and there but is more likely to want to think things over. This is known as taking the case to avizandum.
There will in most cases like this have been a shorthand writer taking down the evidence. Sometimes a Sheriff will ask for their notes to be typed out before making a decision. The Sheriff’s decision is normally quite long and sets out the reason behind it. It is called an Interlocutor. It is sent to your solicitor who will “translate” it for you.