Aliment
1 Obligation of aliment.
(1)
From the commencement of this Act, an obligation of aliment shall be owed by, and only by—
(a)
a husband to his wife;
(b)
a wife to her husband;
F1(bb)
a partner in a civil partnership to the other partner,
(c)
a father or mother to his or her child;
(d)
a person to a child (other than a child who has been boarded out with him by a local or other public authority or a voluntary organisation) who has been accepted by him as a child of his family.
(2)
For the purposes of this Act, an obligation of aliment is an obligation to provide such support as is reasonable in the circumstances, having regard to the matters to which a court is required or entitled to have regard under section 4 of this Act in determining the amount of aliment to award in an action for aliment.
(3)
Any obligation of aliment arising under a decree or by operation of law and subsisting immediately before the commencement of this Act shall, except insofar as consistent with this section, cease to have effect as from the commencement of this Act.
(4)
Nothing in this section shall affect any arrears due under a decree at the date of termination or cessation of an obligation of aliment, nor any rule of law by which a person who is owed an obligation of aliment may claim aliment from the executor of a deceased person or from any person enriched by the succession to the estate of a deceased person.
(5)
In subsection (1) above—
“child” means a person—
(a)
under the age of 18 years; or
(b)
over that age and under the age of 25 years who is reasonably and appropriately undergoing instruction at an educational establishment, or training for employment or for a trade, profession or vocation;
“husband” and “wife” include the parties to a valid polygamous marriage.
2 Actions for aliment.
(1)
A claim for aliment only (whether or not expenses are also sought) may be made, against any person owing an obligation of aliment, in the Court of Session or the sheriff court.
(2)
Unless the court considers it inappropriate in any particular case, a claim for aliment may also be made, against any person owing an obligation of aliment, in proceedings—
(a)
for divorce, separation, declarator of marriage or declarator of nullity of marriage;
F2(aa)
for dissolution of a civil partnership, separation of civil partners or declarator of nullity of a civil partnership,
(b)
relating to orders for financial provision;
F3(c)
concerning parental responsibilities or parental rights (within the meaning of sections 1(3) and 2(4) respectively of the Children (Scotland) Act 1995) or guardianship in relation to children;
(d)
concerning parentage or legitimacy;
(e)
of any other kind, where the court considers it appropriate to include a claim for aliment.
(3)
In this Act “action for aliment” means a claim for aliment in proceedings referred to in subsection (1) or (2) above.
(4)
An action for aliment may be brought—
(a)
by a person (including a child) to whom the obligation of aliment is owed;
(b)
by the curator bonis of an incapax F4... ;
(c)
on behalf of a child under the age of 18 years, by—
(i)
the F5parent or guardian of the child;
F6(ii)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F7(iii)
a person with whom the child lives or who is seeking a residence order (within the meaning of section 11(2)(c) of the Children (Scotland) Act 1995) in respect of the child.
(5)
A woman (whether married or not) may bring an action for aliment on behalf of her unborn child as if the child had been born, but no such action shall be heard or disposed of prior to the birth of the child.
(6)
It shall be competent to bring an action for aliment, notwithstanding that the person for or on behalf of whom aliment is being claimed is living in the same household as the defender.
(7)
It shall be a defence to an action for aliment brought by virtue of subsection (6) above that the defender is fulfilling the obligation of aliment, and intends to continue doing so.
(8)
It shall be a defence to an action for aliment by or on behalf of a person other than a child under the age of 16 years that the defender is making an offer, which it is reasonable to expect the person concerned to accept, to receive that person into his household and to fulfil the obligation of aliment.
(9)
For the purposes of subsection (8) above, in considering whether it is reasonable to expect a person to accept an offer, the court shall have regard among other things to any conduct, decree or other circumstances which appear to the court to be relevant: but the fact that a husband and wife F8or the partners in a civil partnership have agreed to live apart shall not of itself be regarded as making it unreasonable to expect a person to accept such an offer.
(10)
A person bringing an action for aliment under subsection (4)(c) above may give a good receipt for aliment paid under the decree in the action.
3 Powers of court in action for aliment.
(1)
The court may, if it thinks fit, grant decree in an action for aliment, and in granting such decree shall have power—
(a)
to order the making of periodical payments, whether for a definite or an indefinite period or until the happening of a specified event;
(b)
to order the making of alimentary payments of an occasional or special nature, including payments in respect of inlying, funeral or educational expenses;
(c)
to backdate an award of aliment under this Act—
(i)
to the date of the bringing of the action or to such later date as the court thinks fit; or
(ii)
on special cause shown, to a date prior to the bringing of the action;
(d)
to award less than the amount claimed even if the claim is undisputed.
(2)
Nothing in subsection (1) above shall empower the court to substitute a lump sum for a periodical payment.
4 Amount of aliment.
(1)
In determining the amount of aliment to award in an action for aliment, the court shall, subject to subsection (3) below, have regard—
(a)
to the needs and resources of the parties;
(b)
to the earning capacities of the parties;
(c)
generally to all the circumstances of the case.
(2)
Where two or more parties owe an obligation of aliment to another person, there shall be no order of liability, but the court, in deciding how much, if any, aliment to award against any of those persons, shall have regard, among the other circumstances of the case, to the obligation of aliment owed by any other person.
(3)
In having regard under subsection (1)(c) above generally to all the circumstances of the case, the court—
(a)
may, if it thinks fit, take account of any support, financial or otherwise, given by the defender to any person whom he maintains as a dependant in his household, whether or not the defender owes an obligation of aliment to that person; and
(b)
shall not take account of any conduct of a party unless it would be manifestly inequitable to leave it out of account.
F9(4)
Where a court makes an award of aliment in an action brought by or on behalf of a child under the age of 16 years, it may include in that award such provision as it considers to be in all the circumstances reasonable in respect of the expenses incurred wholly or partly by the person having care of the child for the purpose of caring for the child.
5 Variation or recall of decree of aliment.
(1)
A decree granted in an action for aliment brought before or after the commencement of this Act may, on an application by or on behalf of either party to the action, be varied or recalled by an order of the court if since the date of the decree there has been a material change of circumstances.
F10(1A)
(2)
The provisions of this Act shall apply to applications and orders under subsection (1) above as they apply to actions for aliment and decrees in such actions, subject to any necessary modifications.
(3)
On an application under subsection (1) above, the court may, pending determination of the application, make such interim order as it thinks fit.
(4)
Where the court backdates an order under subsection (1) above, the court may order any sums paid under the decree to be repaid.
6 Interim aliment.
(1)
A claim for interim aliment shall be competent—
(b)
in an action for divorce, separation, declarator of marriage or declarator of nullity of marriage, by either party against the other party.
F13(c)
in an action for dissolution of a civil partnership, separation of civil partners or declarator of nullity of a civil partnership, by either partner against the other partner,
on behalf of the claimant and any person on whose behalf he is entitled to act under section 2(4) of this Act.
(2)
Where a claim under subsection (1) above has been made, then, whether or not the claim is disputed, the court may award by way of interim aliment the sum claimed or any lesser sum or may refuse to make such an award.
(3)
An award under subsection (2) above shall consist of an award of periodical payments payable only until the date of the disposal of the action in which the award was made or such earlier date as the court may specify.
(4)
An award under subsection (2) above may be varied or recalled by an order of the court; and the provisions of this section shall apply to an award so varied and the claim therefor as they applied to the original award and the claim therefor.
7 Agreements on aliment.
(1)
Any provision in an agreement which purports to exclude future liability for aliment or to restrict any right to bring an action for aliment shall have no effect unless the provision was fair and reasonable in all the circumstances of the agreement at the time it was entered into.
(2)
Where a person who owes an obligation of aliment to another person has entered into an agreement to pay aliment to or for the benefit of the other person, on a material change of circumstances application may be made to the court by or on behalf of either person for variation of the amount payable under the agreement or for termination of the agreement.
F14(2ZA)
On an application under subsection (2) above, the court may—
(a)
pending determination of the application, make such interim order as it thinks fit;
(b)
make an order backdating a variation of the amount payable under the agreement to—
(i)
the date of the application or such later date as the court thinks fit; or
(ii)
on special cause shown, a date prior to the date of the application.
(2ZB)
Where the court makes an order under subsection (2ZA)(b) above, it may order any sums paid under the agreement to be repaid on such terms (including terms relating to repayment by instalments) as the court thinks fit.
(2ZC)
Nothing in subsection (2ZA) shall empower the court to substitute a lump sum for a periodical payment.
F15(2A)
Without prejudice to the generality of subsection (2) above, the making of a F16maintenance assessmentF16maintenance calculation with respect to a child to whom or for whose benefit aliment is payable under such an agreement is a material change of circumstances for the purposes of that sub section.
(3)
Subsections (8) and (9) of section 2 of this Act (which afford a defence to an action for aliment in certain circumstances) shall apply to an action to enforce such an agreement as is referred to in subsection (2) above as they apply to an action for aliment.
(4)
In F17this section “the court” means the court which would have jurisdiction and competence to entertain an action for aliment between the parties to the agreement to which the application under that subsection relates.
(5)
In this section “agreement” means an agreement entered into before or after the commencement of this Act and includes a unilateral voluntary obligation.
Financial provision on divorce, etc.
8 Orders for financial provision.
(1)
In an action for divorce, either party to the marriage F18and in an action for dissolution of a civil partnership, either partner may apply to the court for one or more of the following orders—
(b)
an order for the making of a periodical allowance to him by the other party to the F20action;
F22(baa)
a pension sharing order.
F23(ba)
an order under section 12A(2) or (3) of this Act;
(c)
an incidental order within the meaning of section 14(2) of this Act.
(2)
Subject to sections 12 to 15 of this Act, where an application has been made under subsection (1) above, the court shall make such order, if any, as is—
(a)
justified by the principles set out in section 9 of this Act; and
(b)
reasonable having regard to the resources of the parties.
(3)
An order under subsection (2) above is in this Act referred to as an “order for financial provision”.
F24(4)
The court shall not, in the same proceedings, make both a pension sharing order and an order under section 12A(2) or (3) of this Act in relation to the same pension arrangement.
F25(4A)
The court shall not make a pension sharing order, or an order under section 12A(2) or (3) of this Act, in relation to matrimonial property, or partnership property, consisting of compensation such as is mentioned in section 10(5A).
(5)
Where, as regards a pension arrangement, the parties to a marriage F26or the partners in a civil partnership have in effect a qualifying agreement which contains a term relating to pension sharing, the court shall not—
(a)
make an order under section 12A(2) or (3) of this Act; or
(b)
make a pension sharing order,
relating to the arrangement unless it also sets aside the agreement or term under section 16(1)(b) of this Act.
(6)
The court shall not make a pension sharing order in relation to the rights of a person under a pension arrangement if there is in force an order under section 12A(2) or (3) of this Act which relates to benefits or future benefits to which he is entitled under the pension arrangement.
(7)
In subsection (5) above—
(a)
“term relating to pension sharing” shall be construed in accordance with section 16(2A) of this Act; and
(b)
“qualifying agreement” has the same meaning as in section 28(3) of the Welfare Reform and Pensions Act 1999.
F278A Pension sharing orders: apportionment of charges.
If a pension sharing order relates to rights under a pension arrangement, the court may include in the order provision about the apportionment between the parties of any charge under section 41 of the Welfare Reform and Pensions Act 1999 (charges in respect of pension sharing costs) or under corresponding Northern Ireland legislation.
9 Principles to be applied.
(1)
The principles which the court shall apply in deciding what order for financial provision, if any, to make are that—
(a)
the net value of the matrimonial property should be shared fairly between the parties to the marriage F28or as the case may be the net value of the partnership property should be so shared between the partners in the civil partnership;
(b)
(c)
any economic burden of caring,
F30(i)
after divorce, for a child of the marriage under the age of 16 years
F31(ii)
after dissolution of the civil partnership, for a child under that age who has been accepted by both partners as a child of the family,
should be shared fairly between the F32persons;
(d)
a F33person who has been dependent to a substantial degree on the financial support of the other F33person should be awarded such financial provision as is reasonable to enable him to adjust, over a period of not more than three years from
F34(i)
the date of the decree of divorce, to the loss of that support on divorce,
F35(ii)
the date of the decree of dissolution of the civil partnership, to the loss of that support on dissolution,
(e)
a F36person who at the time of the divorce F37or of the dissolution of the civil partnership, seems likely to suffer serious financial hardship as a result of the divorce F37or dissolution should be awarded such financial provision as is reasonable to relieve him of hardship over a reasonable period.
(2)
In subsection (1)(b) above and section 11(2) of this Act—
“economic advantage” means advantage gained whether before or during the marriage F38or civil partnership and includes gains in capital, in income and in earning capacity, and “economic disadvantage” shall be construed accordingly;
“contributions” means contributions made whether before or during the marriage F38or civil partnership; and includes indirect and non-financial contributions and, in particular, any such contribution made by looking after the family home or caring for the family.
10 Sharing of value of matrimonial property.
(1)
(2)
F41Subject to subsection (3A) below, the net value of the F42... property shall be the value of the property at the relevant date after deduction of any debts incurred by F43one or both of the parties to the marriage or as the case may be of the partners —
(a)
before the marriage so far as they relate to the matrimonial property F44or before the registration of the partnership so far as they relate to the partnership property, and
(b)
during the marriage F45or partnership,
which are outstanding at that date.
(3)
In this section “the relevant date” means whichever is the earlier of—
(a)
subject to subsection (7) below, the date on which the F46persons ceased to cohabit;
(b)
the date of service of the summons in the action for divorce F47or for dissolution of the civil partnership.
F48(3A)
In its application to property transferred by virtue of an order under section 8(1)(aa) of this Act this section shall have effect as if—
(a)
in subsection (2) above, for “relevant date” there were substituted “
appropriate valuation date
”
;
(b)
“(2A)
Subject to subsection (2B), in this section the “appropriate valuation date” means—
(a)
where the parties to the marriage or, as the case may be, the partners agree on a date, that date;
(b)
where there is no such agreement, the date of the making of the order under section 8(1)(aa).
(2B)
If the court considers that, because of the exceptional circumstances of the case, subsection (2A)(b) should not apply, the appropriate valuation date shall be such other date (being a date as near as may be to the date referred to in subsection (2A)(b)) as the court may determine.”; and
(c)
subsection (3) did not apply.
(4)
Subject to F49subsections (5) and (5A) below, in this section and in section 11 of this Act “the matrimonial property” means all the property belonging to the parties or either of them at the relevant date which was acquired by them or him (otherwise than by way of gift or succession from a third party)—
(a)
before the marriage for use by them as a family home or as furniture or plenishings for such home; or
(b)
during the marriage but before the relevant date.
F50(4A)
Subject to F51subsections (5) and (5A) below, in this section and in section 11 of this Act “the partnership property” means all the property belonging to the partners or either of them at the relevant date which was acquired by them or by one of them (otherwise than by way of gift or succession from a third party)—
(a)
before the registration of the partnership for use by them as a family home or as furniture or plenishings for such a home, or
(b)
during the partnership but before the relevant date.
(5)
The proportion of any rights or interests of either F52person
(b)
F58(5A)
Where either person is entitled to compensation payable under Chapter 3 of Part 2 of the Pensions Act 2004 (c. 35) or any provision in force in Northern Ireland corresponding to that Chapter, the proportion of the compensation which is referable to the period to which subsection (4)(b) or (4A)(b) above refers shall be taken to form part of the matrimonial property or partnership property.
(6)
In subsection (1) above “special circumstances”, without prejudice to the generality of the words, may include—
(a)
(b)
(c)
any destruction, dissipation or alienation of property by either F63person;
(d)
(e)
the actual or prospective liability for any expenses of valuation or transfer of property in connection with the divorce F66or the dissolution of the civil partnership.
(7)
For the purposes of subsection (3) above no account shall be taken of any cessation of cohabitation where the F67persons thereafter resumed cohabitation, except where the F67persons ceased to cohabit for a continuous period of 90 days or more before resuming cohabitation for a period or periods of less than 90 days in all.
F68F69(8)
The Secretary of State may by regulations make provision about calculation and verification in relation to the valuation for the purposes of this Act of benefits under a pension arrangement or relevant state scheme rights.
F70(8A)
Regulations under subsection (8) above may include—
(a)
provision for calculation or verification in accordance with guidance from time to time prepared by a prescribed person; and
(b)
provision by reference to regulations under section 30 or 49(4) of the Welfare Reform and Pensions Act 1999.
F71(8B)
The Scottish Ministers may by regulations make provision for or in connection with the verification, or apportionment, of compensation such as is mentioned in subsection (5A).
(9)
F74(10)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F74(11)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
11 Factors to be taken into account.
(1)
In applying the principles set out in section 9 of this Act, the following provisions of this section shall have effect.
(2)
For the purposes of section 9(1)(b) of this Act, the court shall have regard to the extent to which—
(a)
(b)
any resulting imbalance has been or will be corrected by a sharing of the value of the matrimonial property F76or the partnership property or otherwise.
(3)
For the purposes of section 9(1)(c) of this Act, the court shall have regard to—
(a)
any decree or arrangement for aliment for the child;
(b)
any expenditure or loss of earning capacity caused by the need to care for the child;
(c)
the need to provide suitable accommodation for the child;
(d)
the age and health of the child;
(e)
the educational, financial and other circumstances of the child;
(f)
the availability and cost of suitable child-care facilities or services;
(g)
the needs and resources of the F77persons; and
(h)
all the other circumstances of the case.
(4)
For the purposes of section 9(1)(d) of this Act, the court shall have regard to—
(a)
the age, health and earning capacity of the F78person who is claiming the financial provision;
(b)
the duration and extent of the dependence of that F79person prior to divorce or to the dissolution of the civil partnership;
(c)
any intention of that F78person to undertake a course of education or training;
(d)
the needs and resources of the F80persons; and
(e)
all the other circumstances of the case.
(5)
For the purposes of section 9(1)(e) of this Act, the court shall have regard to—
(a)
the age, health and earning capacity of the F81person who is claiming the financial provision;
(b)
the duration of the marriage F82or of the civil partnership;
(c)
the standard of living of the F83persons during the marriage or civil partnership;
(d)
the needs and resources of the F84persons; and
(e)
all the other circumstances of the case.
(6)
In having regard under subsections (3) to (5) above to all the other circumstances of the case, the court may, if it thinks fit, take account of any support, financial or otherwise, given by the F85person who is to make the financial provision to any person whom he maintains as a dependant in his household whether or not he owes an obligation of aliment to that person.
(7)
In applying the principles set out in section 9 of this Act, the court shall not take account of the conduct of either party F86to the marriage or as the case may be of either partner unless—
(a)
the conduct has adversely affected the financial resources which are relevant to the decision of the court on a claim for financial provision; or
(b)
in relation to section 9(1)(d) or (e), it would be manifestly inequitable to leave the conduct out of account.
12 Orders for payment of capital sum or transfer of property.
(1)
An order under section 8(2) of this Act for payment of a capital sum or transfer of property may be made—
(a)
on granting decree of divorce F87or of dissolution of a civil partnership; or
(b)
within such period as the court on granting F88the decree may specify.
(2)
The court, on making an order referred to in subsection (1) above, may stipulate that it shall come into effect at a specified future date.
(3)
The court, on making an order under section 8(2) of this Act for payment of a capital sum, may order that the capital sum shall be payable by instalments.
(4)
Where an order referred to in subsection (1) above has been made, the court may, on an application by
F89(a)
either party to the marriage,
F90(b)
either partner,
on a material change of circumstances, vary the date or method of payment of the capital sum or the date of transfer of property.
F9112A Orders for payment of capital sum: pensions lump sums.
(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 F92or a partner in a civil partnership (“the liable person”) in circumstances where—
(a)
(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 F96person, the court, on making the capital sum order, may make an order requiring the F97person 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 F98or 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 F99person, the court, on making the capital sum order, may make an order—
(a)
(b)
(4)
Any payment by the F102person responsible for the pension arrangement under an order under subsection (2) or (3) above—
(a)
(b)
shall be treated for all purposes as a payment made by the liable F99person in or towards the discharge of his liability under the capital sum order.
(5)
Where the liability of the liable F99person under the capital sum order has been discharged in whole or in part, other than by a payment by the F104person 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 F105person responsible for a pension F106arrangement (“the first arrangement”) and the liable F99person acquires transfer credits under another arrangement (“the new F106arrangement”) which are derived (directly or indirectly) from a transfer from the first arrangement of all his accrued rights under that ; and
(b)
(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 F108person responsible for the pension arrangement specified in the order the F108person responsible for any other pension arrangement under which any lump sum referred to in subsection (1) above is payable to the liable F99person or in respect of his death.
F109(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)
Notwithstanding the provisions of section 8(4A), for 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.
F110(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;
(9)
Regulations under F112subsections (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.
F113(10)
The definition of “benefits under a pension scheme” in section 27 of this Act does not apply to this section.
F114(11)
In subsections F115(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.
13 Orders for periodical allowance.
(1)
An order under section 8(2) of this Act for a periodical allowance may be made—
(a)
on granting decree of divorce F116or of dissolution of a civil partnership;
(b)
within such period as the court on granting F117the decree may specify; or
(c)
after F118such decree where—
(i)
no such order has been made previously;
(ii)
application for the order has been made after the date of decree; and
(iii)
since the date of decree there has been a change of circumstances.
(2)
The court shall not make an order for a periodical allowance under section 8(2) of this Act unless—
(a)
the order is justified by a principle set out in paragraph (c), (d) or (e) of section 9(1) of this Act; and
(b)
it is satisfied that an order for payment of a capital sum or for transfer of propertyF119, or a pension sharing order, under that section would be inappropriate or insufficient to satisfy the requirements of the said section 8(2).
(3)
An order under section 8(2) of this Act for a periodical allowance may be for a definite or an indefinite period or until the happening of a specified event.
(4)
Where an order for a periodical allowance has been made under section 8(2) of this Act, and since the date of the order there has been a material change of circumstances, the court shall, on an application by or on behalf of either party to the marriage or his executorF120, or as the case may be either partner or his executor,, have power by subsequent order—
(a)
to vary or recall the order for a periodical allowance;
(b)
to backdate such variation or recall to the date of the application therefor or, on cause shown, to an earlier date;
(c)
to convert the order into an order for payment of a capital sum or for a transfer of property.
F121(4A)
Without prejudice to the generality of subsection (4) above, the making of a F122maintenance assessmentF122maintenance calculation with respect to a child who has his home with a person to whom the periodical allowance is made (being a child to whom the person making the allowance has an obligation of aliment) is a material change of circumstances for the purposes of that subsection.
(5)
The provisions of this Act shall apply to applications and orders under subsection (4) above as they apply to applications for periodical allowance and orders on such applications.
(6)
Where the court backdates an order under subsection (4)(b) above, the court may order any sums paid by way of periodical allowance to be repaid.
(7)
An order for a periodical allowance made under section 8(2) of this Act—
(a)
F124(b)
shall cease to have effect on the person receiving payment—
(i)
marrying,
(ii)
entering into a civil partnership, or
(iii)
dying,
except in relation to any arrears due under it.
14 Incidental orders.
(1)
Subject to subsection (3) below, an incidental order may be made under section 8(2) of this Act before, on or after the granting or refusal of decree of divorce F125or of dissolution of a civil partnership.
(2)
In this Act, “an incidental order” means one or more of the following orders—
(a)
an order for the sale of property;
(b)
an order for the valuation of property;
(c)
an order determining any dispute between the parties to the marriageF126, or as the case may be the partners, as to their respective property rights by means of a declarator thereof or otherwise;
(d)
an order regulating the occupation of
F128(ii)
the family home of the partnership,
or the use of furniture and plenishings therein or excluding either F129person from such occupation;
(e)
an order regulating liability, as between the F130persons, for outgoings in respect of
F132(ii)
the family home of the partnership,
or furniture or plenishings therein;
(f)
an order that security shall be given for any financial provision;
(g)
an order that payments shall be made or property transferred to any curator bonis or trustee or other person for the benefit of the F133person by whom or on whose behalf application has been made under section 8(1) of this Act for an incidental order;
(h)
an order setting aside or varying any term in an antenuptial or postnuptial marriage settlement F134or in any corresponding settlement in respect of the civil partnership;
(j)
an order as to the date from which any interest on any amount awarded shall run;
F135(ja)
in relation to a deed relating to moveable property, an order dispensing with the execution of the deed by the grantor and directing the sheriff clerk to execute the deed;
(k)
any ancillary order which is expedient to give effect to the principles set out in section 9 of this Act or to any order made under section 8(2) of this Act.
(3)
An incidental order referred to in subsection (2)(d) or (e) above may be made only on or after the granting of F136the decree.
(4)
An incidental order may be varied or recalled by subsequent order on cause shown.
(5)
So long as an incidental order granting a party to a marriage the right to occupy a matrimonial home or the right to use furniture and plenishings therein remains in force then—
(a)
section 2(1), (2), (5)(a) and (9) of the M1Matrimonial Homes (Family Protection) (Scotland) Act 1981 (which confer certain general powers of management on a spouse in relation to a matrimonial home), and
(b)
subject to section 15 (3) of this Act, section 12 of the said Act of 1981 and F137section 41 of the Bankruptcy (Scotland) Act 1985 (which protect the occupancy rights of a spouse against arrangements intended to defeat them),
shall, except to the extent that the order otherwise provides, apply in relation to the order—
(i)
as if that party were a non-entitled spouse and the other party were an entitled spouse within the meaning of section 1(1) or 6(2) of the said Act of 1981 as the case may require;
(ii)
as if the right to occupy a matrimonial home under that order were “occupancy rights” with the meaning of the said Act of 1981; and
(iii)
with any other necessary modifications; and
subject to section 15(3) of this Act, section 11 of the said Act of 1981 (protection of spouse in relation to furniture and plenishings) shall apply in relation to the order as if that party were a spouse within the meaning of the said section 11 and the order were an order under section 3(3) or (4) of the said Act of 1981.
F138(5A)
So long as an incidental order granting a partner in a civil partnership the right to occupy a family home or the right to use furnishings and plenishings therein remains in force then—
(a)
section 102(1), (2), (5)(a) and (9) of the Civil Partnership Act 2004, and
(b)
subject to section 15(3) of this Act, section 111 of that Act,
shall, except to the extent that the order otherwise provides, apply in relation to the order in accordance with subsection (5B).
(5B)
Those provisions apply—
(a)
as if that partner were a non-entitled partner and the other partner were an entitled partner within the meaning of section 101 or 106(2) of that Act as the case may require,
(b)
as if the right to occupy a family home under that order were a right specified in paragraph (a) or (b) of section 101(1) of that Act, and
(c)
with any other necessary modification.
(6)
In subsection (2)(h) above, “settlement” includes a settlement by way of a policy of assurance to which section 2 of the M2Married Women’s Policies of Assurance (Scotland) Act 1880 relates.
(7)
Notwithstanding subsection (1) above, the Court of Session may by Act of Sederunt make rules restricting the categories of incidental order which may be made under section 8(2) of this Act before the granting of decree of divorce F139or of dissolution of a civil partnership.
15 Rights of third parties.
(1)
The court shall not make an order under section 8(2) of this Act for the transfer of property if the consent of a third party which is necessary under any obligation, enactment or rule of law has not been obtained.
(2)
The court shall not make an order under section 8(2) of this Act for the transfer of property subject to security without the consent of the creditor unless he has been given an opportunity of being heard by the court.
(3)
Neither an incidental order, nor any rights conferred by such an order, shall prejudice any rights of any third party insofar as those rights existed immediately before the making of the order.
16 Agreements on financial provision.
(1)
Where the parties to a marriage F140or the partners in a civil partnership have entered into an agreement as to financial provision to be made on divorce F141or on dissolution of the civil partnership, the court may make an order setting aside or varying—
(a)
any term of the agreement relating to a periodical allowance where the agreement expressly provides for the subsequent setting aside or variation by the court of that term; or
(b)
the agreement or any term of it where the agreement was not fair and reasonable at the time it was entered into.
(2)
The court may make an order—
(a)
under subsection (1)(a) above at any time after granting decree of divorce F142or of dissolution of the civil partnership; and
F143(b)
under subsection (1)(b) above, if the agreement does not contain a term relating to pension sharing, on granting decree of divorce F142or of dissolution of the civil partnership or within such time as the court may specify on granting decree of divorce F142 or of dissolution of the civil partnership; or
(c)
under subsection (1)(b) above, if the agreement contains a term relating to pension sharing—
(i)
where the order sets aside the agreement or sets aside or varies the term relating to pension sharing, on granting decree of divorce F142or of dissolution of the civil partnership; and
F144(2A)
In subsection (2) above, a term relating to pension sharing is a term corresponding to provision which may be made in a pension sharing order and satisfying the requirements set out in section 28(1)(f) or 48(1)(f) of the Welfare Reform and Pensions Act 1999.
F145(2B)
Subsection (2C) applies where—
(a)
the parties to a marriage or the partners in a civil partnership have entered into an agreement as to financial provision to be made on divorce or on dissolution of the civil partnership; and
(b)
the agreement includes provision in respect of a person's rights or interests or benefits under an occupational pension scheme.
(2C)
The Board of the Pension Protection Fund's subsequently assuming responsibility for the occupational pension scheme in accordance with Chapter 3 of Part 2 of the Pension Act 2004 (c. 35) or any provision in force in Northern Ireland corresponding to that Chapter shall not affect—
(a)
the power of the court under subsection (1)(b) to make an order setting aside or varying the agreement or any term of it;
(b)
on an appeal, the powers of the appeal court in relation to the order.
(3)
Without prejudice to subsections (1) and (2) above, where the parties to a marriage F146or the partners in a civil partnership have entered into an agreement as to financial provision to be made on divorce F147or on dissolution of the civil partnership and—
(a)
(b)
(c)
(d)
the court may, on or at any time after granting decree of divorce F152or of dissolution of the civil partnership, make an order setting aside or varying any term of the agreement relating to the periodical allowance.
(4)
Any term of an agreement purporting to exclude the right to apply for an order under subsection (1)(b) or (3) above shall be void.
(5)
In this section, “agreement” means an agreement entered into before or after the commencement of this Act.
17 Financial provision on declarator of nullity of marriage.
(1)
Subject to the following provisions of this section, the provisions of this Act shall apply to actions for declarator of nullity of marriage F153or of a civil partnership as they apply to actions for divorce F154or for dissolution of a civil partnership; and in this Act, unless the context otherwise requires, “action for divorce ” includes an action for declarator of nullity of marriage F155and “action for dissolution of a civil partnership” includes an action for declarator of nullity of a civil partnership and, in relation to such an action, “decree”F156, “divorce” and “dissolution of a civil partnership” shall be construed accordingly.
(2)
(3)
Any rule of law by virtue of which either party to an action for declarator of nullity of marriage may require restitution of property upon the granting of such declarator shall cease to have effect.
Supplemental
18 Orders relating to avoidance transactions.
(1)
Where a claim has been made (whether before or after the commencement of this Act), being—
(a)
an action for aliment,
(b)
a claim for an order for financial provision, or
(c)
an application for variation or recall of a decree in such an action or of an order for financial provision,
the F159person making the claim may, not later than one year from the date of the disposal of the claim, apply to the court for an order—
(i)
setting aside or varying any transfer of, or transaction involving, property effected by the other F159person not more than 5 years before the date of the making of the claim; or
(ii)
interdicting the other F159person from effecting any such transfer or transaction.
(2)
Subject to subsection (3) below, on an application under subsection (1) above for an order the court may, if it is satisfied that the transfer or transaction had the effect of, or is likely to have the effect of, defeating in whole or in part any claim referred to in subsection (1) above, make the order applied for or such other order as it thinks fit.
(3)
An order under subsection (2) above shall not prejudice any rights of a third party in or to the property where that third party—
(a)
has in good faith acquired the property or any of it or any rights in relation to it for value; or
(b)
derives title to such property or rights from any person who has done so.
(4)
Where the court makes an order under subsection (2) above, it may include in the order such terms and conditions as it thinks fit and may make any ancillary order which it considers expedient to ensure that the order is effective.
19 Inhibition and arrestment.
F160(1)
Where a claim has been made, being—
(a)
an action for aliment, or
(b)
a claim for an order for financial provision,
the court shall have power, on cause shown, to grant warrant for inhibition or warrant for arrestment on the dependence of the action in which the claim is made and, if it thinks fit, to limit the inhibition to any particular property or to limit the arrestment to any particular property or to funds not exceeding a specified value.
(2)
In subsection (1) above, “the court” means the Court of Session in relation to a warrant for inhibition and the Court of Session or the sheriff, as the case may require, in relation to a warrant for arrestment on the dependence.
(3)
This section is without prejudice to section 1 of the M3Law Reform (Miscellaneous Provisions) (Scotland) Act 1966 (wages, pensions, etc, to be exempt from arrestment on the dependence of an action).
20 Provision of details of resources.
In an action—
(a)
for aliment;
(b)
which includes a claim for an order for financial provision; or
(c)
which includes a claim for interim aliment,
the court may order either party to provide details of his resources or those relating to a child or incapax on whose behalf he is acting.
21 Award of aliment or custody where divorce or separation refused.
22 Expenses of action.
The expenses incurred by a F164person in pursuing or defending—
F165(a)
an action for aliment brought—
(i)
by either party to a marriage, or
(ii)
by either party in a civil partnership,
on his own behalf against the other party or partner,
(b)
an action for divorce, separation F166(whether of the parties to a marriage or the civil partners in a civil partnership), declarator of marriage or declarator of nullity of marriage;
F167(bb)
an action for dissolution of a civil partnership, declarator that a civil partnership exists or declarator of nullity of a civil partnership,
(c)
an application made after the commencement of this Act for variation or recall of a decree of aliment or an order for financial provision in an action brought before or after the commencement of this Act,
shall not be regarded as necessaries for which the other party to the marriage F168or the other partner in the civil partnership is liable.
23 Actions for aliment of small amounts.
“3 Actions for aliment of small amounts.
(1)
An action under section 2 of the Family Law (Scotland) Act 1985 for aliment only (whether or not expenses are also sought) may be brought before the sheriff as a summary cause if the aliment claimed in the action does not exceed—
(a)
in respect of a child under the age of 18 years, the sum of £35 per week; and
(b)
in any other case, the sum of £70 per week;
and any provision in any enactment limiting the jurisdiction of the sheriff in a summary cause by reference to any amount, or limiting the period for which a decree granted by him shall have effect, shall not apply in relation to such an action.
(2)
Without prejudice to any other enactment, the sheriff shall have jurisdiction in an action for aliment brought as a summary cause by virtue of subsection (1) above if—
(a)
the pursuer resides within the jurisdiction of the sheriff, and
(b)
the action could, by virtue of section 6 of the principal Act (which relates to jurisdiction), have been brought in the sheriff court of another sheriffdom.
(3)
The Lord Advocate may by order vary the amounts prescribed in paragraphs (a) and (b) of subsection (1) above.
(4)
The power to make an order under subsection (3) above shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament and shall include power to vary or revoke any order made thereunder.”
Matrimonial property, etc.
24 Marriage not to affect property rights or legal capacity.
(1)
Subject to the provisions of any enactment (including this Act), marriage F169or civil partnership shall not of itself affect—
(a)
the respective rights of the parties to the marriageF170, or as the case may be the partners in the civil partnership, in relation to their property;
(b)
the legal capacity of F171those parties or partners.
(2)
Nothing in subsection (1) above affects the law of succession.
25 Presumption of equal shares in household goods.
(1)
If any question arises (whether during or after a marriage F172or civil partnership) as to the respective rights of ownership of the parties to a marriage F173or the partners in a civil partnership in any household goods obtained in prospect of or during the marriage F172or civil partnership other than by gift or succession from a third party, it shall be presumed, unless the contrary is proved, that each has a right to an equal share in the goods in question.
(2)
For the purposes of subsection (1) above, the contrary shall not be treated as proved by reason only that while
F174(a)
the parties were married
F175(b)
the partners were in civil partnership,
and living together the goods in question were purchased from a third party by either party alone or by both in unequal shares.
(3)
In this section “household goods” means any goods (including decorative or ornamental goods) kept or used at any time during the marriage F176or civil partnership in any family home for the joint domestic purposes of the parties to the marriage F177or the partners, other than—
(a)
money or securities;
(b)
any motor car, caravan or other road vehicle;
(c)
any domestic animal.
26 Presumption of equal shares in money and property derived from housekeeping allowance.
If any question arises (whether during or after a marriage F178or civil partnership) as to the right of a party to a marriage F179or as the case may be of a partner in a civil partnership to money derived from any allowance made by either party F180or partner for their joint household expenses or for similar purposes, or to any property acquired out of such money, the money or property shall, in the absence of any agreement between them to the contrary, be treated as belonging to each party F180or partner in equal shares.
General
27 Interpretation.
(1)
In this Act, unless the context otherwise requires—
“action” means an action brought after the commencement of this Act;
“action for aliment” has the meaning assigned to it by section 2(3) of this Act;
“aliment” does not include alimentpendente lite or interim aliment under section 6 of this Act;
F181“benefits under a pension arrangement” includes any benefits by way of pension, including relevant state scheme rights, whether under a pension arrangement or not;
“caravan” means a caravan which is mobile or affixed to the land;
“child” includes F182a child whether or not his parents have ever been married to one another, and any reference to the child of a marriage (whether or not subsisting) includes a child (other than a child who has been boarded out with the parties, or one of them, by a local or other public authority or a voluntary organisation) who has been accepted by the parties as a child of the family;
F183“civil partnership”, in relation to an action for declarator of nullity of a civil partnership, means purported civil partnership,
F184“child support maintenance” has the meaning assigned to it by section 3(6) of the Child Support Act 1991;
“the court” means the Court of Session or the sheriff, as the case may require;
“decree” in an action for aliment includes an order of the court awarding aliment;
“family” includes a one-parent family F185and in relation to a civil partnership means the members of the civil partnership together with any child accepted by them both as a child of the family;
“incidental order” has the meaning assigned to it by section 14(2) of this Act;
F184“
F186maintenance assessmentF186maintenance calculation” has the meaning assigned to it by section 54 of the Child Support Act 1991;“marriage”, in relation to an action for declarator of nullity of marriage, means purported marriage;
“matrimonial home” has the meaning assigned to it by section 22 of the M5Matrimonial Homes (Family Protection) (Scotland) Act 1981 F187as amended by section 13(10) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985;
“needs” means present and foreseeable needs;
“obligation of aliment” shall be construed in accordance with section 1(2) of this Act;
“order for financial provision” means an order under section 8(2) of this Act and, in sections 18(1) and 22(c) of this Act, also includes an order under section 5(2) of the M6Divorce (Scotland) Act 1976;
F183“partner”, in relation to a civil partnership, includes a person who F188was a partner in a civil partnership which has been terminated and an ostensible partner in a civil partnership which has been annulled,
“party to a marriage” and “party to the marriage” include a party to a marriage which has been terminated or annulled;
F189“pension arrangement” means—
- (a)
any occupational pension scheme within the meaning of the M7Pension Schemes Act 1993;
- (b)
a personal pension scheme within the meaning of that Act;
- (c)
a retirement annuity contract;
- (d)
an annuity or insurance policy purchased or transferred for the purpose of giving effect to rights under an occupational pension scheme or a personal pension scheme;
- (e)
an annuity purchased or entered into for the purpose of discharging liability in respect of a pension credit under section 29(1)(b) of the Welfare Reform and Pensions Act 1999 or under corresponding Northern Ireland legislation;
- (a)
F190“pension sharing order” is an order which—
- (a)
provides that one party’s—
- (i)
shareable rights under a specified pension arrangement, or
- (ii)
shareable state scheme rights,
be subject to pension sharing for the benefit of the other party, and
- (i)
- (b)
specifies the percentage value, or the amount, to be transferred;
- (a)
F191“person responsible for a pension arrangement” means—
- (a)
in the case of an occupational pension scheme or a personal pension scheme, the trustees or managers of the scheme;
- (b)
in the case of a retirement annuity contract or an annuity falling within paragraph (d) or (e) of the definition of “pension arrangement” above, the provider of the annuity;
- (c)
in the case of an insurance policy falling within paragraph (d) of the definition of that expression, the insurer;
- (a)
“property” in sections 8, 12, 13 and 15 of this Act does not include a tenancy transferable under section 13 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981;
F192“relevant state scheme rights” means—
- (a)
entitlement, or prospective entitlement, to a Category A retirement pension by virtue of section 44(3)(b) of the M8Social Security Contributions and Benefits Act 1992 or under corresponding Northern Ireland legislation; and
- (b)
entitlement, or prospective entitlement, to a pension under section 55A of the M9Social Security Contributions and Benefits Act 1992 (shared additional pension) or under corresponding Northern Ireland legislation;
- (a)
“resources” means present and foreseeable resources;
F193“retirement annuity contract” means a contract or scheme approved under Chapter III of Part XIV of the M10Income and Corporation Taxes Act 1988;
F194“trustees or managers” in relation to an occupational pension scheme or a personal pension scheme means—
- (a)
in the case of a scheme established under a trust, the trustees of the scheme; and
- (b)
in any other case, the managers of the scheme;
- (a)
“voluntary organisation” means a body, other than a local or other public authority, the activities of which are not carried on for profit.
F195(1A)
In subsection (1), in the definition of “pension sharing order”—
(a)
the reference to shareable rights under a pension arrangement is to rights in relation to which pension sharing is available under Chapter I of Part IV of the Welfare Reform and Pensions Act 1999, or under corresponding Northern Ireland legislation, and
(b)
the reference to shareable state scheme rights is to rights in relation to which pension sharing is available under Chapter II of Part IV of the Welfare Reform and Pensions Act 1999, or under corresponding Northern Ireland legislation.
(2)
For the purposes of this Act, the parties to a marriage shall be held to cohabit with one another only when they are in fact living together as man and wife.
28 Amendments, repeals and savings.
(1)
The enactments specified in Schedule 1 to this Act shall have effect subject to the amendments set out therein.
(2)
The enactments specified in columns 1 and 2 of Schedule 2 to this Act are repealed to the extent specified in column 3 of that Schedule.
(3)
Nothing in subsection (2) above shall affect the operation of section 5 (orders for financial provision) of the M11Divorce (Scotland) Act 1976 in relation to an action for divorce brought before the commencement of this Act; but in the continued operation of that section the powers of the court—
(a)
to make an order for payment of periodical allowance under subsection (2) thereof; and
(b)
to vary such an order under subsection (4) thereof,
shall include power to make such an order for a definite or an indefinite period or until the happening of a specified event.
29 Citation, commencement and extent.
(1)
This Act may be cited as the Family Law (Scotland) Act 1985.
(2)
This Act shall come into operation on such day as the Secretary of State may appoint by order made by statutory instrument, and different days may be appointed for different purposes.
(3)
An order under subsection (2) above may contain such transitional provisions and savings as appear to the Secretary of State necessary or expedient in connection with the provisions brought into force (whether wholly or partly) by the order.
(4)
So much of section 28 of, and Schedule 1 to, this Act as affects the operation of the M12Maintenance Orders Act 1950 and the M13Maintenance Orders (Reciprocal Enforcement) Act 1972 shall extend to England and Wales and to Northern Ireland as well as to Scotland, but save as aforesaid this Act shall extend to Scotland only.