Rule 33.28 Evidence in certain undefended family actions

Scotland

(1)

This rule—

(a)

subject to sub-paragraph (b), applies to all family actions in which no notice of intention to defend has been lodged, other than a family action—

(i)

for F1a section 11 order or for aliment;

(ii)

of affiliation and aliment;

(iii)

for financial provision after an overseas divorce or annulment within the meaning of Part IV of the M1Matrimonial and Family Proceedings Act 1984; or

(iv)

for an order under the M2Act of 1981;

F2(v)

for declarator of recognition, or non-recognition, of a relevant foreign decree within the meaning of section 7(9) of the Domicile and Matrimonial Proceedings Act 1973;

F3(vi)

for an order under section 28 or 29 of the Act of 2006;

F4(vii)

for declarator of recognition, or non-recognition, of a relevant foreign decree within the meaning of paragraph 1 of Schedule 1B to the Domicile and Matrimonial Proceedings Act 1973, or of a judgment to which paragraph 2(1)(b) of that Schedule refers.

(b)

applies to a family action in which a curator ad litem has been appointed under rule 33.16 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 sheriff so directs;

(d)

applies to the merits of a family action which is undefended on the merits where the sheriff so directs, notwithstanding that the action is defended on an ancillary matter.

(2)

Unless the sheriff otherwise directs, evidence shall be given by affidavit.

(3)

Unless the sheriff otherwise directs, evidence relating to the welfare of a child shall be given by affidavit, at least one affidavit being emitted 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.

Annotations

Textual amendments

F1: Words in Sch. 1 rule 33.28(1)(a)(i) substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 16
F2: Sch. 1 rule 33.28(1)(a)(v) inserted (1.1.2011) by Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) (No. 2) 2010 (S.S.I. 2010/416), paras. 1(1), 8(4)
F3: Sch. 1 rule 33.28(1)(a)(vi) inserted (1.8.2012) by Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2012 (S.S.I. 2012/188), paras. 1(1), 5(7) (with para. 15)
F4: Sch. 1 rule 33.28(1)(a)(vii) inserted (16.12.2014) by Act of Sederunt (Rules of the Court of Session and Sheriff Court Rules Amendment No. 2) (Marriage and Civil Partnership (Scotland) Act 2014) 2014 (S.S.I. 2014/302), paras. 1(2), 5(4)

Marginal citations

M1: 1984 c.42; Part IV was amended by the Act of 1985 (c.37), Schedule 1, paragraphs 12 and 13.
M2: 1981 c.59.

Notes on Schedule First

Textual amendments

F1

Sch. 1 (with appendices 1 and 2) substituted (1.1.1994) for Sch. 1 (with appendix) by S.I. 1993/1956, para. 2, Sch.1.

Sch. 1 (except rule 29.10) excluded (1.4.1997) by S.I. 1997/291, para. 3.24, Sch. 3

Sch. 1 extended (14.2.2000) by S.I. 2000/124, reg. 30(5)

Modifications

C1: Sch. 1 applied (30.11.2016) by Bankruptcy (Scotland) Act 2016 (asp 21), ss. 121(5), 237(2) (with ss. 232, 234(3), 235, 236); S.S.I. 2016/294, reg. 2
C2: Sch. 1 modified (1.12.2025) by Act of Sederunt (Intimation and Service) 2025 (S.S.I. 2025/301), paras. 1(2), (4), 2 (with para. 1(5))
C3: Sch. 1 modified (1.12.2025) by Act of Sederunt (Electronic Signature and Electronic Transmission of Documents) 2025 (S.S.I. 2025/302), paras. 1(2), 2(1), 3-5