Family Law (Scotland) Act 1985

10 Sharing of value of matrimonial property. S

(1) In applying the principle set out in section 9(1)(a) of this Act, the net value of the matrimonial property shall be taken to be shared fairly between the parties to the marriage when it is shared equally or in such other proportions as are justified by special circumstances.

(2) The net value of the matrimonial property shall be the value of the property at the relevant date after deduction of any debts incurred by the parties or either of them—

(a) before the marriage so far as they relate to the matrimonial property, and

(b) during the marriage,

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 parties ceased to cohabit;

(b) the date of service of the summons in the action for divorce.

(4) Subject to subsection (5) 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.

(5) The proportion of any rights or interests of either party

[F1 (a)] under a life policy [F2 or similar arrangement; and

(b) in any benefits under a pension scheme which either party has or may have (including such benefits payable in respect of the death of either party),

which is] referable to the period to which subsection (4)(b) above refers shall be taken to form part of the matrimonial property.

(6) In subsection (1) above “special circumstances”, without prejudice to the generality of the words, may include—

(a) the terms of any agreement between the parties on the ownership or division of any of the matrimonial property;

(b) the source of the funds or assets used to acquire any of the matrimonial property where those funds or assets were not derived from the income or efforts of the parties during the marriage;

(c) any destruction, dissipation or alienation of property by either party;

(d) the nature of the matrimonial property, the use made of it (including use for business purposes or as a matrimonial home) and the extent to which it is reasonable to expect it to be realised or divided or used as security;

(e) the actual or prospective liability for any expenses of valuation or transfer of property in connection with the divorce.

(7) For the purposes of subsection (3) above no account shall be taken of any cessation of cohabitation where the parties thereafter resumed cohabitation, except where the parties 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.

[F3 [F4 (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.]

[F5 (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.]

(9) Regulations under subsection (8) above shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(10) In this section—

• “benefits under a pension scheme” includes any benefits by way of pension, whether under a pension scheme or not;

• “pension scheme” means—

  (a)

  an occupational pension scheme or a personal pension scheme (applying the definitions in section 1 of the Pension Schemes Act 1993, but as if the reference to employed earners in the definition of “personal pension scheme” were to any earners);

  (b)

  a retirement annuity contract; or

  (c)

  an annuity, or insurance policy, purchased or transferred for the purpose of giving effect to rights under a pension scheme falling within paragraph (a) above; and

• “prescribed” means prescribed by regulations.

(11) In this section, references to the trustees or managers of a pension scheme—

(a) in relation to a contract or annuity referred to in paragraph (b) or (c) of the definition of “pension scheme” in subsection (10) above, shall be read as references to the provider of the annuity;

(b) in relation to an insurance policy referred to in paragraph (c) of that definition, shall be read as a reference to the insurer.]

Textual Amendments

F1 Letter in s. 10(5) inserted (19.8.1996) by 1995 c. 26, s. 167(2)(a)(i); S.I. 1996/1843, art. 3(b) (with art. 4)

F2 Words in s. 10(5) substituted (19.8.1996) by 1995 c. 26, s. 167(2)(a)(ii); S.I. 1996/1843, art. 3(a) (with art. 4)

F3 S. 10(8)-(11) inserted (15.7.1996 for certain purposes only and 19.8.1996 otherwise) by 1995 c. 26, s. 167(2)(b); S.I. 1996/1843, art. 3 (with art. 4)

F4 S. 10(8) substituted (15.4.2000) by 1999 c. 30, s. 84, Sch. 12 Pt. I para. 8(1)(3) (with s. 91(4)); S.S.I. 2000/111, art., 2

F5 S. 10(8A) inserted (15.4.2000) by 1999 c. 30, s. 84, Sch. 12 Pt. I para. 8(1)(4) (with s. 91(4)); S.S.I. 2000/111, art. 2