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Family Business in the Scottish Sheriff Courts in 1992 - Research Findings

DescriptionTo identify characteristics and volume of family business in the courts, progress and outcome of cases, and frequency of use in different methods of dispute resolution.
ISBN
Official Print Publication Date
Website Publication DateDecember 29, 1998
Legal Studies Research Findings No. 6 1997
Family Business in the Scottish Sheriff Courts in 1992

Sue Morris, Deborah Pegg and Sue Warner

ISBN 0-7480-5960-1Publisher The Scottish OfficePrice £5.00
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.
Main findings
  • 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.
Introduction
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.
Research methods
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.
The sample
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.
Research findings
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
Types of Cases in 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

Number

%

Behaviour

462

40

Adultery

151

13

Non-cohabitation (2 years)

366

32

Non-cohabitation (5 years)

165

14

Desertion

12

1

Who was involved in family actions?
By definition, all parties in divorce actions were married. In non divorce actions, most parties were either married (39%) or cohabiting (39%). Fewer than one in ten of the parties in non divorce actions were divorced. A small minority of family cases (13% of non divorce actions) involved parties in different relationships, such as grandparents or sisters and brothers and in these instances, actions were less likely to be defended than when current or ex partners were involved.
Some data were collected on employment and benefit status. 6 Men, whether pursuers or defenders, were more likely than women to be in full time employment. Women were more likely than men to be out of work or in part time employment.
Over half (54%) of the parties for whom data were available were in receipt of state benefits. Women and pursuers of actions were more likely than men and defenders to be receiving benefits; however, given that most pursuers were women, this is not surprising. By contrast however, a higher proportion of male than female defenders were receiving state benefits.
How many people were legally aided?
Information on the legal aid status of the parties was not always available and where it was, information on status at the start of the action only was collected from the court register. It is likely therefore that the figures below under-estimate the prevalence of legal aid. Nor can it be assumed that legal aid was available for the whole of the court action.
Fifty seven per cent of all parties (for whom information was available) were recorded as being in receipt of legal aid when the case was initiated. Most women pursuers were legally aided (70%) whereas less than half the men were so assisted (48%). Pursuers were more likely than defenders to be in receipt of legal aid (65% pursuers compared with 31% of defenders).
Legal aid was more likely in cases where at least one crave related to children, particularly for pursuers.
Who initiated family actions?
Three quarters of all family actions were initiated by women, particularly so in divorce cases. An action was more likely to be defended where the pursuer was male - 41 per cent of cases with male pursuers were defended compared with 29 per cent of cases with female pursuers. This difference was particularly noticeable in non divorce cases where over three quarters of cases pursued by males were defended compared with the 40 per cent of non divorce cases pursued by females (see Table 2 below).
Table 2
Proportion of cases which were defended and undefended, by type of case and sex of pursuer
Defended Cases%Undefended Cases%All Cases%
Divorce:
male pursuer

25

75

100

female pursuer

26

74

100

Non-divorce:
male pursuer

78

22

100

female pursuer

40

60

100

All cases:
male pursuer

41

59

100

female pursuer

29

71

100

What orders were sought in family actions?
The orders sought or craved in family actions can be categorised into different types - divorce, custody, access, financial provision, property division, and protective measures. Craves may be sought by both pursuer and defender in a case.
The study shows that different types of crave were made in different types of actions. Divorce cases were most common. In non divorce cases, almost all the craves in the study were found to relate to children. Almost half of non divorce actions involved a crave for custody, whereas only 18 per cent involved craves for aliment and 16 per cent for access. Craves for declarators of paternity or parental rights were made in a minority of non divorce cases (10 and 6 per cent respectively).
Custody was craved in 56 per cent of all actions included in the study, more commonly where actions were undefended and thus was usually unopposed. Women were far more likely than men to crave custody - 68 per cent of all orders sought by women were for custody, whereas only 20 per cent of orders sought by men fell into this category.
Access orders were sought in 6 per cent of actions, more commonly in actions which were defended, and in 90 per cent of cases were sought by men.
Aliment was craved in just under a quarter of all actions (23%), mainly by women. Financial orders were mainly related to children (see below) for weekly sums. In only 9 per cent of divorce actions was periodical allowance sought (ie financial provision for one partner from another 7). Craves for capital sum payments and property orders (mainly transfer of property between parties) were rare. These were found in around 5 per cent of actions.
Overall, craves for financial and property orders were found in 12 per cent of cases. These were more likely to be a feature of defended rather than undefended actions and of cases where craves concerned children rather than those which did not.
Craves for protective measures mainly comprised interdicts for non molestation and were a feature of 20 per cent of all family actions. Such craves were more common in non divorce than divorce actions.
Table 3
Proportion of cases involving certain types of crave

%

Divorce

77

Custody

56

Access

6

Aliment

23

Financial and Property Order

12

Protective Measures

20

Defenders can also seek orders and, out of the 121 instances where this occurred, almost three quarters of craves were made in defence by men. Only in 16 per cent of cases with a male defender did the defender crave custody, compared with 70 per cent of cases with a female defender. Female defenders were more likely than men to crave financial orders such as periodical allowance and capital sum payments.
How were family actions in the courts resolved?
Most cases were resolved without adjudication; 98 per cent of cases in the study were resolved by the parties in some way. Even for defended cases, the adjudication level was only 6 per cent. 8
In 21 per cent of family actions, the parties had lodged a Joint Minute of Agreement. These were found in almost two thirds of defended actions but were less common in undefended cases (3%). Minutes of Agreement entered into outwith court proceedings were noted in under 10 per cent of all cases, but unlike Joint Minutes of Agreement, were more likely to be found in connection with undefended actions than in connection with defended ones.
Some data were collected on informal agreements i.e. agreements not formalised in Joint Minutes or Minutes of Agreement 9 (although some had been formalised in previous court actions). Informal arrangements were noted in 27 per cent of all actions, mainly in undefended cases (81% were found in undefended actions) and nearly a third of undefended actions contained an informal agreement.
Table 4
Methods of dispute resolution in defended and undefended cases
Defended actions using
agreements
Undefended actions using agreements

%

%

Joint Minutes of Agreement

65

3

Minutes of Agreement

4

9

Informal Arrangements

16

32

What about other forms of dispute resolution?
Under a recent Rule of Court, sheriffs can order parties to attend a mediation information session. This occurred in 5 per cent of all family actions in the survey. Similarly, sheriffs can order social enquiry reports in order to elicit further information on the case. This occurred in 17 per cent of cases in the survey.
A third alternative involves parties asking the court to make an interim order which makes arrangements for how matters are to be dealt with pending the final decision of the court. Over half of cases in the survey involved a crave for an interim order and such orders were far more common in defended actions (74%) than in undefended actions (49%). Interim orders were also more common in non divorce (84%) than non divorce actions (49%).
Custody was the most commonly craved interim order - 70 per cent of cases where an interim order was sought involved a crave for interim custody (just under two thirds of cases involving children). Over one third of interim orders concerned protective measures, mainly related to non molestation and the power to arrest.
What were the outcomes of family actions?
In nearly all divorce actions - 94 per cent - the divorce was granted. Where grounds related to non cohabitation (both categories), the divorce was almost always granted (99% of cases). For other grounds, refusal rates were higher, but it was still the case that the vast majority were granted by the court.
In non divorce cases, just over half the craves were granted. Where craves related to custody or aliment, they were usually granted (in 79% and 80% of cases respectively). Craves for access tended to be less successful and were granted only in 44 per cent of such cases.
Forty five per cent of craves for protective measures were granted as were 53 per cent of craves for interdicts for non molestation.
Women pursuers were more likely than their male counterparts to have craves related to children granted (i.e. craves for custody, aliment or access).
Whilst men rarely sought custody (in only 8 per cent of all cases involving children was this the case), these craves were more likely to be refused than similar craves by women. Nearly one quarter of fathers seeking custody were unsuccessful compared with 9 per cent of women who sought custody. Most female craves for custody being undefended.
Defenders rarely craved orders and where this occurred, it was mainly men who craved in defence, primarily for access. Over two thirds were successful.
How far are children involved in family actions?
The study collected data on craves relating to children and, overall, children were the subject of a crave in two thirds of all the family actions studied. There was no significant difference in the proportion of craves in divorce and non divorce actions which concerned children, although defended actions were more likely than non defended actions to involve children (73% compared with 68% respectively).
Custody was by far the most common crave concerning children. Custody was sought in 86 per cent and aliment for children in 36 per cent of the cases in which there was a crave relating to children. Other child-related orders were rarely craved, including access which was sought in only 9 per cent of all actions.
Table 5
Proportion of cases involving children

%

Defended

73

Undefended

61

Divorce

64

Non divorce

68

All cases

65

Although orders for custody were sought in most family actions involving children, the majority of custody craves related to undefended actions and so were not opposed. In 90 per cent of cases custody was granted as craved, regardless of whether or not the action was defended or undefended. There was a total of 83 cases in which the issue of custody of children was adjudicated, and in two thirds of these custody was awarded to the mother.
Custody was frequently sought in combination with some kind of financial order, most commonly aliment.
Access to children was craved in relatively few cases by either defender or pursuer. Access can be craved on either a residential or a non residential basis and one case can involve craves for residential and non residential access. Residential access is sought usually in terms of days per year; non residential access by hours per week.
Craves for access included roughly equal proportions applying for residential or non residential access and in a third of cases both types of access were craved.
On average, the number of days residential access granted was 55 days, slightly lower than the average craved (57 days). For defenders, the access actually granted was 60 days but the average craved was slightly higher at 68 days per year. For both pursuers and defenders, the average non residential access craved was 7 hours per week and on average access of 5 hours per week was granted.
Aliment, or child maintenance, on a weekly or monthly basis, was craved in just over a third of the family actions which involved children. Aliment was largely claimed on a weekly basis with the average sum claimed being £35. In practice the average sum granted was somewhat lower at £28. Monthly aliment was at a somewhat higher level. On average the monthly sum claimed per child was £178 and the average sum granted was £152.
Table 6
Financial Orders Craved

Proportion of cases involving children with a crave for a financial order

Proportion of cases not involving children with a crave for a financial order

%

%

Capital Sum Payment

38

66

Periodical Allowance

63

39

Property Transfer

33

43

A large majority - 82 per cent - of those who craved aliment were in receipt of state benefits and half were unemployed. In contrast, in almost all successful aliment cases, the party required to make payments was in full time employment.
Craves for other types of financial order (i.e. a financial order for the benefit of one of the adult parties) in cases involving children were less common. Overall, 13 per cent of these cases involved a crave for a financial order, mainly periodical allowance.
In cases which involved craves concerning children and financial orders, financial arrangements were most likely to be in the form of periodical allowance. Where children were not involved, capital sum payments tended to form the basis of agreement.
About the study
The survey of family business on the Scottish courts was commissioned by the Legal Studies Research Group of The Scottish Office Home Department in 1994 as a baseline study to examine the nature and volume of family business in the sheriff court in Scotland. The survey was intended both to provide general information about the characteristics of family actions and a basis upon which to assess the impact of the Child Support Act 1991 on the work of the courts in the area of family law. This study is complemented by a project which examines the more informal processes related to written agreements.
The survey of family business was undertaken by The MVA Consultancy and involved an examination of court records held in 4 sheriff courts across Scotland. The courts were selected to provide a range of different characteristics, including geographical location, urban and rural areas and volume of business. The cases sampled were all family law cases which went through ordinary procedure and resulted in final decree in 1992. Both divorce and non divorce actions were included, but 'do it yourself' divorces and actions taken under other procedures were excluded from the study.
A total of 1,502 cases were examined in the survey and information from the court records for each was analysed. A sample of this size was selected to allow for the inclusion of a sufficient number of less numerous types of case. The cases were weighted to reflect the actual distribution of defended and undefended actions in 1992 in the 4 sheriff courts participating in the survey.
1 Wasoff, McGuckin & Edwards (1996) Mutual Consent: Written Agreements in Family Law, Edinburgh, CRU Report and Research Findings, HMSO.
2 The 1995 Children (Scotland) Act has amended the way that courts deal with children and these categories no longer apply.
3 Morris, Gibson & Platts (1993) Untying the Knot: Characteristics of Divorce in Scotland, Edinburgh, CRU papers, HMSO.
4 Morris & Headrick (1995) Pilgrim's Process? Defended Actions in the Sheriff's Ordinary Court, Edinburgh, CRU Report and Research Findings, HMSO.
3
5 Some care should be taken in interpreting these figures as the presence of a NID does not necessarily mean that defences will be lodged. Given that the presence of a NID classifies an action as defended, it is likely that defended actions are even less significant than appears from these figures. See the recent study by Morris and Headrick (op. cit.).
4
6 Data on these factors were not available for all actions and so figures should be treated with some care.
5
7 Periodical allowance is only competent in divorce actions.
8 Cases could involve more than 1 type of resolution.
9 The numbers however, are small, and should be treated with caution.
A copy of the technical report upon which this summary is based may be obtained from the address given below.
For additional copies of this Research Findings contact:
The Scottish Office Central Research Unit
J1-0
Saughton House
Broomhouse Drive
Edinburgh
EH11 3XA

The report can also be ordered online from:www.thestationeryoffice.co.uk