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proof hearing

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23 Mar 09 #101218 by mumof5
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hello,
im wondering if anybody who has been to a proof hearing can let me know what happens in it.
i know its in open court so am scared about all the horrible bits coming into the open. i have 5 kids so the last thing i want is for them to read all about it.thanks in advance
n3w

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23 Mar 09 #101241 by Fiona
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Although a proof is in open court there can be a good bit of coming and going outside the courtroom. Submissions are made by the lawyers, including someone representing any children when a guardian has been appointed. Any witnesses are called and there is cross examination. The judge considers the evidence of the disputed facts. In particular he/she is is directed to take account of all reports, the welfare of the child, of any views expressed by the child and only make an order unless it would be better for the child than not making an order.

Below is an example of a sheriff principal's judgment in a case where a parent sought to prevent the children being relocated to Spain.

www.scotcourts.gov.uk/opinions/F400_07.html

Despite the fact cases are heard in open court there are strict restrictions aimed at protecting 'public morals' and children in family law cases. Have you never noticed the media coverage of Scottish cases is somewhat subdued compared to English ones? Judgments in children cases are anatomized - with phrases like 'a reclaiming motion of the Lord Ordinary's Interlocutor' most people don't understand or get bored with them anyway. ;)

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23 Mar 09 #101377 by mumof5
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fiona,
thanks very much for that. can i ask you a couple of questions?
my solicitor says that the proof is also to deal with the divorce and finances as well,how does this work? sorry for being a pest
n3w

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23 Mar 09 #101383 by Fiona
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Wow - contesting all three, that's something of a rarity. :woohoo:

It's the same idea. Submissions are made, witnesses called and cross examined for each bit, the judge considers the evidence and applies the law. There is a good deal of haggling out of the courtroom.

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23 Mar 09 #101390 by mumof5
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dear fiona
thanks for getting back so quickly
yeah hes doing all 3 together so as you can imagine im confused.
every site i visited to get advice none of them mentioned all 3.
do i get to know who he is calling as witnesses and do i get to know what hes arguing about?
im living in england but started the divorce in scotland.a bit confusing i know but a long story
thank you
n3w

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24 Mar 09 #101469 by Fiona
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In Scotland there aren't separate procedures, the divorce, finances are treated together. What happens is when someone applies under the ordinary procedure they (or a solicitor on their behalf) write out the details of all the issues relating to the divorces, finances and children. The defender may decide to defend the action, either because they object to the divorce itself, or because they dispute some aspect of the future arrangements for the care of any children, the proposed financial provision on divorce or both of these matters.

If the divorce involves a dispute in respect of children and the action is being defended in the sheriff court, the next step in proceedings is a Child Welfare Hearing. The sheriff may also order other hearings relating to children where they consider it appropriate.

Where a divorce is defended in the sheriff court the next stage is an Options Hearing(s). This is intended to give parties a chance to meet before the sheriff in order to ascertain if agreement can be reached with any of the outstanding divorce, children and financial matters without proceeding to a full proof. Any issues not resolved proceed to a 'proof.'

Documents (including statements) are lodged with the courts and all other parties within 14 days and a list of witnesses within 28 days of an interlocutor (order) setting the date of the proof.

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24 Mar 09 #101504 by mumof5
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dear fiona,
thanks very much for your replys.
we were to have an options hearing/2nd child welfare hearing 2nd april but the options hearing has now been cancelled.the sheriff wanted to do them together that way i wouldnt need to keep travelling up to scotland.
maintance has now been taken of the agenda as the csa are involved,hes now started to have fone contact and dd has told her dad she does not want to see him but dd is ok with fone contact[the sheriff said that if dd didnt want to see dad that dd was to tell him when he foned]
the divorce is what we both want[hes getting remarried asap]the only thing that is left is a pension which has been going for 23 years.he does not want to give me any part of this,so this is what is holiding things up.
i know he is not getting any legal aid help so his fees must be quite a bit by now.
we are still waiting to see what the pension is worth but its been a year since it was requested and he has ignored this,

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