Financial provision on divorce, etc.
C18 Orders for financial provision.
1
In an action for divorce, either party to the marriage F36and 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 F38action;
F3baa
a pension sharing order.
F4ba
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”.
F54
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.
F1244A
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 F37or 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.
8AF6 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 F39or 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,
F41i
after divorce, for a child of the marriage under the age of 16 years
F42ii
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 F43persons;
d
a F44person who has been dependent to a substantial degree on the financial support of the other F44person should be awarded such financial provision as is reasonable to enable him to adjust, over a period of not more than three years from
F47i
the date of the decree of divorce, to the loss of that support on divorce,
F48ii
the date of the decree of dissolution of the civil partnership, to the loss of that support on dissolution,
e
a F45person who at the time of the divorce F46or of the dissolution of the civil partnership, seems likely to suffer serious financial hardship as a result of the divorce F46or 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 F49or 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 F49or 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
F131Subject to subsection (3A) below, the net value of the F53... property shall be the value of the property at the relevant date after deduction of any debts incurred by F54one 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 F55or before the registration of the partnership so far as they relate to the partnership property, and
b
during the marriage F56or 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 F57persons ceased to cohabit;
b
the date of service of the summons in the action for divorce F58or for dissolution of the civil partnership.
F1323A
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
after that subsection there were inserted—
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.
c
subsection (3) did not apply.
4
Subject to F125subsections (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.
F504A
Subject to F126subsections (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 F59person
b
F1285A
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 F65person;
d
e
the actual or prospective liability for any expenses of valuation or transfer of property in connection with the divorce F68or 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 F69persons thereafter resumed cohabitation, except where the F69persons 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.
F10F118
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.
F128A
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.
F1298B
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
F1410
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1411
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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 F71or 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 F72persons; 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 F73person who is claiming the financial provision;
b
the duration and extent of the dependence of that F74person prior to divorce or to the dissolution of the civil partnership;
c
any intention of that F73person to undertake a course of education or training;
d
the needs and resources of the F75persons; 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 F76person who is claiming the financial provision;
b
the duration of the marriage F77or of the civil partnership;
c
the standard of living of the F78persons during the marriage or civil partnership;
d
the needs and resources of the F79persons; 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 F80person 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 F81to 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 F82or of dissolution of a civil partnership; or
b
within such period as the court on granting F83the 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
F84a
either party to the marriage,
F85b
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.
F1512A 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 F86or 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 F136person, the court, on making the capital sum order, may make an order requiring the F17person 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 F88or 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 F89person, the court, on making the capital sum order, may make an order—
a
b
4
Any payment by the F20person 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 F89person in or towards the discharge of his liability under the capital sum order.
5
Where the liability of the liable F89person under the capital sum order has been discharged in whole or in part, other than by a payment by the F22person 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 F23person responsible for a pension F24arrangement (“the first arrangement”) and the liable F89person acquires transfer credits under another arrangement (“the new F24arrangement”) 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 F26person responsible for the pension arrangement specified in the order the F26person responsible for any other pension arrangement under which any lump sum referred to in subsection (1) above is payable to the liable F89person or in respect of his death.
F1337A
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 F134subsections (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.
F2810
The definition of “benefits under a pension scheme” in section 27 of this Act does not apply to this section.
F13511
In subsections (7A) 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 F90or of dissolution of a civil partnership;
b
within such period as the court on granting F91the decree may specify; or
c
after F92such 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 propertyF29, 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 executorF93, 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.
F304A
Without prejudice to the generality of subsection (4) above, the making of a F123maintenance assessmentF123maintenance 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
F95b
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 F98or 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 marriageF99, 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
F101ii
the family home of the partnership,
or the use of furniture and plenishings therein or excluding either F102person from such occupation;
e
an order regulating liability, as between the F107persons, for outgoings in respect of
F108ii
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 F103person 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 F104or 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;
F137ja
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 F105the 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 F31section 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.
F975A
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 F106or 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 F110or the partners in a civil partnership have entered into an agreement as to financial provision to be made on divorce F111or 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 F138or of dissolution of the civil partnership; and
F32b
under subsection (1)(b) above, if the agreement does not contain a term relating to pension sharing, on granting decree of divorce F138or of dissolution of the civil partnership or within such time as the court may specify on granting decree of divorce F138 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 F138or of dissolution of the civil partnership; and
F332A
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.
F1392B
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 F112or the partners in a civil partnership have entered into an agreement as to financial provision to be made on divorce F113or on dissolution of the civil partnership and—
a
b
c
d
the court may, on or at any time after granting decree of divorce F115or 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 F116or of a civil partnership as they apply to actions for divorce F117or 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 F118and “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”F119, “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.