|This study reports data collected on the characteristics and outcomes of family law cases pursued through ordinary cause proceedings which concluded in 4 Scottish courts in 1992, immediately prior to the implementation of the Child Support Act. One of the main effects of the Act is the removal of child maintenance from the jurisdiction of the courts in most cases. The research is based on analysis of court records and, as well as providing general information on family law cases, also provides baseline data for future evaluation of the Act.|
- Three quarters of actions concerned divorce and most of these were undefended.
- Non divorce actions were less common but more likely to be defended.
- Craves for divorce were usually granted: other craves had mixed success.
- Two thirds of actions involved at least 1 crave related to children - largely for custody.
- Custody was sought in more than half the cases and was usually unopposed.
- Of all craves, those for custody and aliment were granted most frequently.
- Three quarters of family actions were initiated by women.
- Cases raised by men were more likely to be defended than those brought by women.
- Women tended to crave custody and aliment, while men craved access (usually in defence).
- Ninety eight per cent of cases were resolved without adjudication.
- In the few cases which reached adjudication, in two thirds, custody was awarded to the mother.
|This paper provides a summary of a study conducted by The MVA Consultancy. The survey involved the collection of data from family actions raised under ordinary cause procedure in the sheriff court and concluded in 1992, immediately prior to the implementation of the Child Support Act (in April 1993). The research is complemented by related research on written agreements in family law. 1|
|Aims of the research|
|The survey of family business aimed to provide information on family law cases both to act as a baseline study for future evaluation of the Child Support Act on family law in Scotland and to provide more general background information on the characteristics of family actions in Scotland. The study had 3 specific objectives: |
- to identify the characteristics and volume of family business in the courts;
- to examine the progress and outcome of cases;
- to measure the frequency of use of different methods of dispute resolution.
|The study was based in 4 sheriff courts with different volumes of business. Data were collected from court records on ordinary family causes which concluded (i.e. decree was awarded) in 1992: a total of 1502 cases were sampled. Cases were categorised into different types of action on the basis of the principal crave outlined in the records.|
|Family law and ordinary procedure in the sheriff court|
|Family law cases include actions relating to divorce, separation, child custody and access, 2 aliment, paternity, parental rights and delivery and warrants to search for children. Most divorces in Scotland (two thirds) are raised under ordinary procedure. The remaining third are raised under the simplified procedure, commonly known as 'do it yourself divorce '3 and were not included in the survey. The simplified procedure cannot be used where the parties have been living apart for less than 2 years or where there are children under 16 or where they are making financial claims on each other.|
|Ordinary procedures form an important part of the civil jurisdiction of the sheriff courts in terms of volume, seriousness and legal complexity. 4 An ordinary action is raised in the sheriff court using an initial writ which contains the craves or applications for the orders that are sought from the court. Most family law cases involve several craves. The first crave outlined in the records is the principal crave. The principal crave is used by the court to define the type of action involved. Other craves in an action are called ancillary craves. Therefore, in an action for divorce (principal crave), the pursuer might also seek other orders such as custody and aliment for children (ancillary craves).|
|The person who initiates the action is called the pursuer. If the person against whom the action is raised (the defender) wishes to defend the case, they must send a Notice of Intention to Defend (NID) to the court. Where a NID is lodged the case is classified by the courts as a defended action.|
|The next stage involves a court appearance, by which time the pursuer must have submitted to the court certain essential documentary material (the process). The defender responds by lodging defences and this is then followed by an adjustment period during which the parties can change the record containing their cases. When this has been completed the record is closed and no further changes can be made. The final stage involves the proof, where the sheriff hears both cases and then reaches a judgement (adjudication).|
|Unlike most other court actions in Scots law, divorce actions must involve the ground for divorce being proved, even if the action is uncontested.|
|There are 3 main legal ways in which family disputes can be resolved. Firstly a Minute of Agreement can be prepared. Here, the parties agree on issues outwith a court action and the Minute of Agreement containing their decisions is registered with the Keeper of Registers. These agreements are legally binding and enforceable by the court. Where a crave for divorce is sought by parties, the Minute of Agreement can form the basis of the post-divorce arrangements to be ratified by the court.|
|A second method of resolution involves the lodging of a Joint Minute of Agreement in an actual court action. Here the parties lodge a document which outlines their agreements during the court proceedings and seek an order from the court to uphold these.|
|Finally, if the parties are unable to resolve their dispute the action goes to proof at which the sheriff resolves the dispute by adjudicating on the issues. Cases might involve any or all of these different options.|
|Data are available on all divorce actions completed in Scotland in 1992 (no such data are available for non divorce actions). The sample of divorce actions in the current study represents 15 per cent of all divorce actions in Scotland for 1992. Overall, the two groups are very similar in composition, although the survey sample contained a higher proportion of defended cases (26% compared with 21% across Scotland). Otherwise, the samples were very similar in terms of sex of the pursuer and the basis upon which divorce was craved.|
|What types of actions were most common?|
|Over three quarters of actions were divorce actions, with the remainder involving craves other than divorce (for example, separation, custody or access actions). Most divorce actions (74%) were undefended, whilst this applied only to just under half of the non divorce actions. 5|
|Types of cases in the sample|
|Strictly speaking, there is only one ground for divorce in Scotland: the irretrievable breakdown of marriage. This can be proved in 5 ways; non cohabitation for 2 years (with consent to divorce from both parties); non cohabitation for 5 years; unreasonable behaviour; adultery and desertion.|
|The most common grounds upon which divorce was craved were unreasonable behaviour (40%) and non cohabitation for two years with consent to divorce from both parties (32%). Non cohabitation for five years and adultery were craved in 14 and 13 per cent of divorces respectively. Desertion formed the basis of only 1 per cent of divorce actions.|
|Table 1 |
Grounds upon which divorce is craved