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Legal Terms Explained

 

 

Ad interim Latin for on ‘an interim basis’.

Affidavit – a written statement given either on oath or affirmed (the equivalent for the non religious) and taken by a notary public (someone authorised to administer an oath or affirmation. Most lawyers are also notaries.

Aliment – payment of maintenance either for a spouse or a child. The equivalent of the probably more commonly known US term alimony. ‘Interim aliment’ is a provision for payment of support in the meantime pending a final decision on the case.

Avizandum – a sheriff ‘makes avizandum’ at the end of a proof. This means the sheriff has taken the case papers away for consideration of his or her decision, and will issue it later in writing. Lawyers talk about a case being "at avizandum" i.e. they’re waiting for a written decision in the case.

Child Welfare Hearing – a hearing which takes place in private which parties are required to come to with their lawyers. The sheriff has to then consider any issues relating to the children involved in the case which might require immediate issues attention, say interim contact, a change of residence etc. A Child Welfare Hearing can be requested by parties or fixed by a sheriff on hi/her own initiative.

Contact – This is what used to be called access - the maintenance of personal relations with a child, not necessarily in the form of actual face to face (direct) contact. This can mean indirect contact e.g. by telephone or letter.

Contempt of court – a person is said to be in contempt of court when they have e.g. failed to comply with a court order, or have misbehaved in court. In any case, the result can be a fine or in the worst case, imprisonment

De facto a Latin term used to describe a factual as opposed to a legal situation. For example, lawyers talk about a person having de facto custody of a child, meaning custody without necessarily having a legal entitlement.

Defender – the person contesting a case.

Ex proprio motu – this is a Latin phrase referring to the process by which the Sheriff makes a decision without, strictly speaking, being asked to do so by one or other party i.e. at his or her own initiative. For example, the Sheriff may ex proprio motu call for a background report in a contact or residence dispute.

Inter alia Latin for ‘among other things’.

Interlocutor – court order

Interdict – an order from the court preventing somebody from doing something e.g. preventing children from being taken out of the country, preventing a husband or wife from disposing of money in a joint account or items joint property and so on.

 

Jurisdiction – This term can mean the right of a court to deal with a case e.g. "the court has no jurisdiction to deal with this case"; or it could mean the geographical area covered by the court as in "the Defender no longer lives within the court’s jurisdiction."

Motion – application to the court for an interim order of some kind.

Obtemper – Lawyers’ word for complying with a court order. Lawyers talk about a party , for example, having failed to obtemper a court order means they refused to comply with it, or acted in breach of it.

Ordain – when the court orders someone to do something, they are ‘ordained’.

Production – piece of evidence; can be written or documentary or something physical

Prorogate – to extend the time limit for say lodging a document with the court.

Proof - hearing on the facts of a case; the civil equivalent of a criminal trial. Witnesses give evidence from the witness box, the evidence is recorded, usually by a shorthand writer, and the sheriff then issues a written decision at the end of the case.

Pursuer – the person bringing a case.

Residence – what was formerly called custody. A residence order, for example, means an order requiring a child to live with a particular person.

Sisted – this word has two meanings. When a sheriff sists a case, s/he puts the case on hold indefinitely. An application then has to be made to the court for the case to be re-listed for a hearing. Alternatively, lawyers talk about ‘sisting a party’. That means obtaining the court’s permission to bring a third party into a case.

Specific issue order – an order that the court can be asked to make in a case involving a child regulating a single issue e.g. the issuing of a passport in the child’s name, a decision as to medical treatment for a child – and so on.

Third Party – somebody other than a Pursuer or Defender with an interest in a case who has applied to the court to be allowed to take part in fully in the case. Alternatively, a third party can be brought into the case by one of the other parties, say someone accused of having had an affair with one of the parties, a grandparent, a local authority and so on.

Witness – When lawyers talk about someone being an actual or potential witness in a case, they don’t usually mean eye witness. A witness in this context just means anybody with relevant information to give the court about the case. It could mean for example an expert who’s prepared a report for the court. In that case the witness would of course be an expert witness.

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