Family Law (Scotland) Act 1985

Changes over time for: Section 12A

Alternative versions:

Changes to legislation:

There are currently no known outstanding effects for the Family Law (Scotland) Act 1985, Section 12A.

Changes to Legislation

Revised legislation carried on this site may not be fully up to date. At the current time any known changes or effects made by subsequent legislation have been applied to the text of the legislation you are viewing by the editorial team. Please see ‘Frequently Asked Questions’ for details regarding the timescales for which new effects are identified and recorded on this site.

[F112A Orders for payment of capital sum: pensions lump sums.S

(1)This section applies where the court makes an order under section 8(2) of this Act for payment of a capital sum (a “capital sum order”) by a party to the marriage [F2or a partner in a civil partnership (“the liable person”)] in circumstances where—

(a)the matrimonial property [F3or the partnership property] within the meaning of section 10 of this Act includes any rights or interests in benefits under a pension [F4arrangement] which the liable [F5person] has or may have (whether such benefits are payable to him or in respect of his death); and

(b)those benefits include a lump sum payable to him or in respect of his death.

(2)Where the benefits referred to in subsection (1) above include a lump sum payable to the liable [F6person], the court, on making the capital sum order, may make an order requiring the [F7person responsible for the pension arrangement] in question to pay the whole or part of that sum, when it becomes due, to the other party to the marriage [F8or as the case may be to the other partner (“the other person”)].

(3)Where the benefits referred to in subsection (1) above include a lump sum payable in respect of the death of the liable [F9person], the court, on making the capital sum order, may make an order—

(a)if the [F10person responsible for the pension arrangement] in question [F11has] power to determine the person to whom the sum, or any part of it, is to be paid, requiring them to pay the whole or part of that sum, when it becomes due, to the other [F9person];

(b)if the liable [F9person] has power to nominate the person to whom the sum, or any part of it, is to be paid, requiring the liable [F9person] to nominate the other [F9person] in respect of the whole or part of that sum;

(c)in any other case, requiring the [F10person responsible for the pension arrangement] in question to pay the whole or part of that sum, when it becomes due, to the other [F9person] instead of to the person to whom, apart from the order, it would be paid.

(4)Any payment by the [F12person responsible for the pension arrangement] under an order under subsection (2) or (3) above—

(a)shall discharge so much of the [F13liability of the person responsible for the pension arrangement] to or in respect of the liable [F9person] as corresponds to the amount of the payment; and

(b)shall be treated for all purposes as a payment made by the liable [F9person] in or towards the discharge of his liability under the capital sum order.

(5)Where the liability of the liable [F9person] under the capital sum order has been discharged in whole or in part, other than by a payment by the [F14person responsible for the pension arrangement] under an order under subsection (2) or (3) above, the court may, on an application by any person having an interest, recall any order under either of those subsections or vary the amount specified in such an order, as appears to the court appropriate in the circumstances.

(6)Where—

(a)an order under subsection (2) or (3) above imposes any requirement on the [F15person responsible for] a pension [F16arrangement] (“the first [arrangement]”) and the liable [F9person] acquires transfer credits under another [arrangement] (“the new [F16arrangement]”) which are derived (directly or indirectly) from a transfer from the first [arrangement] of all his accrued rights under that ; and

(b)the [F15person responsible for] the new [arrangement] [F17has] been given notice in accordance with regulations under subsection (8) below,

the order shall have effect as if it had been made instead in respect of the [F15person responsible for] the new [F16arrangement]; and in this subsection “transfer credits” has the same meaning as in the Pension Schemes Act 1993.

(7)Without prejudice to subsection (6) above, the court may, on an application by any person having an interest, vary an order under subsection (2) or (3) above by substituting for the [F18person responsible for the pension arrangement] specified in the order the [F18person responsible for] any other pension [arrangement] under which any lump sum referred to in subsection (1) above is payable to the liable [F9person] or in respect of his death.

[F19(7ZA)Subsection (7ZB) applies where a right under an occupational pension scheme to payment of a lump sum in respect of death would, but for the provisions of Chapter 3 of Part 2 of the Pensions Act 2004 (c. 35), arise during an assessment period (within the meaning of section 132 of that Act).

(7ZB)An order under subsection (3) shall not take effect until the assessment period comes to an end for a reason other than the giving of a transfer notice under section 160 of that Act.

(7ZC)[F20For] the purpose only of giving effect to subsection (7), the court may deal with an order under subsection (2) so that it–

(a)is addressed to the Board of the Pension Protection Fund instead of the person responsible for a pension arrangement; and

(b)takes effect in respect of an entitlement to compensation payable under Chapter 3 of Part 2 of the Pensions Act 2004 or the Northern Ireland provision, instead of rights in relation to any lump sum referred to in subsection (1) which is payable to the liable party.]

[F21(7A)Where—

(a)the court makes an order under subsection (3); and

(b)after the making of the order the Board gives the trustees or managers of the scheme a notice under section 160 of the Pensions Act 2004 (c. 35) (“the 2004 Act”), or the Northern Ireland provision, in relation to the scheme,

the order shall, on the giving of such notice, be recalled.

(7B)Subsection (7C) applies where—

(a)the court makes an order under subsection (2) imposing requirements on the trustees or managers of an occupational pension scheme; and

(b)after the making of the order the Board gives the trustees or managers of the scheme a notice under section 160 of the 2004 Act, or the Northern Ireland provision, in relation to the scheme.

(7C)The order shall have effect from the time when the notice is given—

(a)as if—

(i)references to the trustees or managers of the scheme were references to the Board; and

(ii)references to any lump sum to which the person with benefits under a pension arrangement is or might become entitled under the scheme were references to the amount of any compensation payable under that Chapter of the 2004 Act, or the Northern Ireland provision, to which that person is or might become entitled in respect of the lump sum; and

(b)subject to such other modifications as may be prescribed by regulations by the Scottish Ministers.]

(8)The Secretary of State may by regulations—

(a)require notices to be given in respect of changes of circumstances relevant to orders under subsection (2) or (3) above;

[F22(b)make provision for the recovery of the administrative expenses of complying with such orders from the liable [F9person] or the other [F9person]] .

(9)Regulations under [F23subsections (7C)(b) and] (8) above shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

F24[(10)The definition of “benefits under a pension scheme” in section 27 of this Act does not apply to this section.]

[F25(11)In subsections [F26(7ZC)] to (7C) “the Northern Ireland provision”, in relation to a provision of the 2004 Act, means any provision in force in Northern Ireland corresponding to the provision of that Act.]]

Textual Amendments

F1S. 12A inserted (15.7.1996 for certain purposes only and 19.8.1996 otherwise) by 1995 c. 26, s. 167(3); S.I. 1996/1843, art. 3 (with art. 4)

F2Words in s. 12A(1) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 19(2)(a); S.S.I. 2005/604, arts. 2(c), 4

F3Words in s. 12A(1)(a) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 19(2)(b); S.S.I. 2005/604, arts. 2(c), 4

F4Word in s. 12A(1)(a) substituted (1.12.2000) by 1999 c. 30, s. 84, Sch. 12 Pt. I para. 9(1)(2); S.I. 2000/1047, art. 2(2)(d), Sch. Pt. IV

F5Word in s. 12A(1)(a) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 19(2)(b); S.S.I. 2005/604, arts. 2(c), 4

F6Word in s. 12A(2) substituted (4.5.2006) by Family Law (Scotland) Act 2006 (asp 2), s. 46(2), Sch. 2 para. 5(2); S.S.I. 2006/212, art. 2

F7Words in s. 12A(2) substituted (1.12.2000) by 1999 c. 30, s. 84, Sch. 12 Pt. I para. 9(1)(3); S.I.2000/1047, art. 2(2)(d), Sch. Pt. IV

F8Words in s. 12A(2) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 19(3); S.S.I. 2005/604, arts. 2(c), 4

F9Word in ss. 12A(3)-(8) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 19(4); S.S.I. 2005/604, arts. 2(c), 4

F10Words in s. 12A(3)(a)(c) substituted (1.12.2000) by 1999 c. 30, s. 84, Sch. 12 Pt. I para. 9(1)(4); S.I. 2000/1047, art. 2(2)(d), Sch. Pt. IV

F11Word in s. 12A(3)(a) substituted (1.12.2000) by 1999 c. 30, s. 84, Sch. 12 Pt. I para. 9(1)(3); S.I. 2000/1047, art. 2(2)(d), Sch. Pt. IV

F12Words in s. 12A(4) substituted (1.12.2000) by 1999 c. 30, s. 84, Sch. 12 Pt. I para. 9(1)(5)(a); S.I. 2000/1047, art. 2(2)(d), Sch. Pt. IV

F13Words in s. 12A(4) subtituted (1.12.2000) by 1999 c. 30, s. 84, Sch. 12 Pt. I para. 9(1)(5)(b); S.I. 2000/1047, art. 2(2)(d), Sch. Pt. IV