Download Textual Amendments to the Civil Partnership Act 2004 and more Study notes Family Law in PDF only on Docsity!
Changes to legislation: There are currently no known outstanding effects for the Family Law (Scotland) Act 1985. (See end of Document for details)
Family Law (Scotland) Act 1985
1985 CHAPTER 37
An Act to make fresh provision in the law of Scotland regarding aliment; regarding
financial and other consequences of decrees of divorce and of declarator of nullity
of marriage; regarding property rights and legal capacity of married persons; and for
connected purposes. [16th July 1985]
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the
Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the
authority of the same, as follows:—
Commencement Information
I1 Act not in force at Royal Assent see s. 29(2), Act wholly in force 30.11.1988.
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.
Document Generated: 2021-09- Changes to legislation: There are currently no known outstanding effects for the Family Law (Scotland) Act 1985. (See end of Document for details)
(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.
Textual Amendments
F1 S. 1(1)(bb) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 11 ; S.S.I. 2005/604, arts. 2(c), 4
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—
Document Generated: 2021-09- Changes to legislation: There are currently no known outstanding effects for the Family Law (Scotland) Act 1985. (See end of Document for details)
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. ]
Textual Amendments
F9 S. 4(4) added (5.4.1993) by Child Support Act 1991 (c. 48, SIF 20), s. 58(13), Sch. 5 para.5 (with s. 9(2)); S.I. 1992/2644, art.2 (with art. 3, Sch.)
Document Generated: 2021-09-
Changes to legislation: There are currently no known outstanding effects for the Family Law (Scotland) Act 1985. (See end of Document for details)
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) Without prejudice to the generality of subsection (1) above, the making of a
[F11 maintenance calculation ] with respect to a child for whom the decree of aliment
was granted is a material change of circumstances for the purposes of that subsection. ]
(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.
Textual Amendments
F10 S. 5(1A) inserted (5.4.1993) by S.I. 1993/660, art. 2(2). F11 Words in s. 5(1A) substituted (3.3.2003 for specified purposes) by Child Support, Pensions and Social Security Act 2000 (c. 19), s. 86(1)(a)(2), Sch. 3 para. 5(2) (with s. 83(6)); S.I. 2003/192, art. 3, Sch.
6 Interim aliment.
(1) A claim for interim aliment shall be competent—
(a) in an action for aliment, by the [F12 person ] who claims aliment against the
other [F12 person ] ;
(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.
Document Generated: 2021-09-
Changes to legislation: There are currently no known outstanding effects for the Family Law (Scotland) Act 1985. (See end of Document for details)
Textual Amendments
F14 S. 7(2ZA)-(2ZC) inserted (4.5.2006) by Family Law (Scotland) Act 2006 (asp 2), ss. 20(2) , 46(2); S.S.I. 2006/212, art. 2 F15 S. 7(2A) inserted (5.4.1993) by S.I. 1993/660 art. 2(3). F16 Words in s. 7(2A) substituted (3.3.2003 for specified purposes) by Child Support, Pensions and Social Security Act 2000 (c. 19), s. 86(1)(a)(2), Sch. 3 para. 5(3) (with s. 83(6)); S.I. 2003/192, art. 3, Sch. F17 Words in s. 7(4) substituted (4.5.2006) by Family Law (Scotland) Act 2006 (asp 2), ss. 20(3) , 46(2); S.S.I. 2006/212, art. 2
Financial provision on divorce, etc.
8 Orders for financial provision.
(1) In an action for divorce, either party to the marriage [F18 and in an action for dissolution
of a civil partnership, either partner ] may apply to the court for one or more of the
following orders—
(a) an order for the payment of a capital sum F19 ... to him by the other party to
the [F20 action ] ;
[F21 (aa) an order for the transfer of property to him by the other party to the [F20 action ] ; ]
(b) an order for the making of a periodical allowance to him by the other party
to the [F20 action ] ;
[F22 (baa) a pension sharing order. ]
[F23 (bab) a pension compensation sharing order; ]
F24[ (ba) an order under section 12A(2) or (3) of this Act; ]
[F25 (bb) an order under section 12B(2); ]
(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”.
F26[ (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.
F27 (4A)................................
(5) Where, as regards a pension arrangement, the parties to a marriage [F28 or 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.
Document Generated: 2021-09- Changes to legislation: There are currently no known outstanding effects for the Family Law (Scotland) Act 1985. (See end of Document for details)
(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. ]
[F29 (8) The court shall not, in the same proceedings, make both a pension compensation
sharing order and an order under section 12B(2) in relation to the same PPF
compensation.
(9) The court shall not make a pension compensation sharing order in relation to rights
to PPF compensation that—
(a) derive from rights under a pension scheme which is subject to an order made
under section 12A(2) or (3) in relation to the marriage or (as the case may be)
civil partnership or a previous one between the same persons,
(b) derive from rights under a pension scheme which were at any time the subject
of a pension sharing order in relation to the marriage or (as the case may be)
civil partnership or a previous one between the same persons,
(c) are or have been the subject of a pension compensation sharing order in
relation to the marriage or (as the case may be) civil partnership or a previous
one between the same persons, or
(d) are the subject of an order made under section 12B(2) in relation to the
marriage or (as the case may be) civil partnership or a previous one between
the same persons.
(10) Where, as regards PPF compensation, the parties to a marriage or the partners in a
civil partnership have in effect a qualifying agreement which contains a term relating
to pension compensation sharing, the court shall not—
(a) make an order under section 12B(2); or
(b) make a pension compensation sharing order,
relating to the compensation unless it also sets aside the agreement or term under
section 16(1)(b) of this Act.
(11) For the purposes of subsection (10)—
(a) the expression “term relating to pension compensation sharing” is to be
construed by reference to section 16(2AA) of this Act; and
(b) a qualifying agreement is one to which section 110(1) of the Pensions Act
2008 relates. ]
Textual Amendments
F18 Words in s. 8(1) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 14(2)(a) ; S.S.I. 2005/604, arts. 2(c), 4 F19 Words repealed by Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40, SIF 76:2), s. 74 , Sch. 8 para. 34(a), Sch. 9 F20 Word in s. 8(1)(a)-(c) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 14(2)(b) ; S.S.I. 2005/604, arts. 2(c), 4
Document Generated: 2021-09- Changes to legislation: There are currently no known outstanding effects for the Family Law (Scotland) Act 1985. (See end of Document for details)
(b) fair account should be taken of any economic advantage derived by either
[F33 person ] from contributions by the other, and of any economic disadvantage
suffered by either [F33 person ] in the interests of the other [F33 person ] or of the
family;
(c) any economic burden of caring,
[F34 (i) ] after divorce, for a child of the marriage under the age of 16 years
[F35 (ii) after dissolution of the civil partnership, for a child [F36 of the civil
partnership, ] under that age F37 ..., ]
should be shared fairly between the [F38 persons ] ;
(d) a [F39 person ] who has been dependent to a substantial degree on the financial
support of the other [F39 person ] should be awarded such financial provision
as is reasonable to enable him to adjust, over a period of not more than three
years from
[F40 (i) ] the date of the decree of divorce, to the loss of that support on divorce,
[F41 (ii) the date of the decree of dissolution of the civil partnership, to the
loss of that support on dissolution, ]
(e) a [F42 person ] who at the time of the divorce [F43 or of the dissolution of the civil
partnership, ] seems likely to suffer serious financial hardship as a result of the
divorce [F43 or 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 [F44 or 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 [F44 or 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.
Textual Amendments
F32 Words in s. 9(1)(a) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 15(2)(a) ; S.S.I. 2005/604, arts. 2(c), 4 F33 Word in s. 9(1)(b) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 15(2)(b) ; S.S.I. 2005/604, arts. 2(c), 4 F34 S. 9(1)(c)(i) formed (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 15(2)(c) ; S.S.I. 2005/604, arts. 2(c), 4 F35 S. 9(1)(c)(ii) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 15(2)(c) ; S.S.I. 2005/604, arts. 2(c), 4 F36 Words in s. 9(1)(c)(ii) inserted (1.6.2021) by Civil Partnership (Scotland) Act 2020 (asp 15), s. 16, sch. 2 para. 2(2)(a) ; S.S.I. 2021/23, reg. 2, sch. (with reg. 3) F37 Words in s. 9(1)(c)(ii) repealed (1.6.2021) by Civil Partnership (Scotland) Act 2020 (asp 15), s. 16, sch. 2 para. 2(2)(b) ; S.S.I. 2021/23, reg. 2, sch. (with reg. 3) F38 Word in s. 9(1)(c) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 15(2)(c) ; S.S.I. 2005/604, arts. 2(c), 4 F39 Words in s. 9(1)(d) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 15(2)(d) ; S.S.I. 2005/604, arts. 2(c), 4 F40 S. 9(1)(d)(i) formed (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 15(2)(d) ; S.S.I. 2005/604, arts. 2(c), 4
Document Generated: 2021-09-
Changes to legislation: There are currently no known outstanding effects for the Family Law (Scotland) Act 1985. (See end of Document for details) F41 S. 9(1)(d)(ii) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 15(2)(d) ; S.S.I. 2005/604, arts. 2(c), 4 F42 Word in s. 9(1)(e) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 15(2)(e) ; S.S.I. 2005/604, arts. 2(c), 4 F43 Words in s. 9(1)(e) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 15(2)(e) ; S.S.I. 2005/604, arts. 2(c), 4 F44 Words in s. 9(2) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 15(3) ; S.S.I. 2005/604, arts. 2(c), 4
10 Sharing of value of matrimonial property.
(1) In applying the principle set out in section 9(1)(a) of this Act, the net value of the
matrimonial property [F45 or partnership property ] shall be taken to be shared fairly
between [F46 persons ] when it is shared equally or in such other proportions as are
justified by special circumstances.
(2) [F47 Subject to subsection (3A) below, ] the net value of the F48 ... property shall be the
value of the property at the relevant date after deduction of any debts incurred by
[F49 one 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 [F50 or
before the registration of the partnership so far as they relate to the partnership
property ] , and
(b) during the marriage [F51 or 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 [F52 persons ] ceased to
cohabit;
(b) the date of service of the summons in the action for divorce [F53 or for
dissolution of the civil partnership ].
[F54 (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) 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.”; and
(c) subsection (3) did not apply. ]
Document Generated: 2021-09-
Changes to legislation: There are currently no known outstanding effects for the Family Law (Scotland) Act 1985. (See end of Document for details)
[F75[
F76 (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. ]
[
F77 (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. ]
[F78 (8B) The Scottish Ministers may by regulations make provision for the purposes of this
Act about—
(a) calculation and verification of PPF compensation,
(b) apportionment of PPF compensation.
(8C) Regulations under subsection (8B) may include provision—
(a) for calculation or verification in a manner approved by a prescribed person,
(b) by reference to regulations under section 112 of the Pensions Act 2008. ]
(9) Regulations under subsection (8) [F79 or (8B) ] above [F80 may make different provision
for different purposes and ] shall be made by statutory instrument which shall be
subject to annulment in pursuance of a resolution of either House of Parliament.
F81 (10)................................
F81 (11)................................ ]
Textual Amendments
F45 Words in s. 10(1) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 16(2)(a) ; S.S.I. 2005/604, arts. 2(c), 4 F46 Word in s. 10(1) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 16(2)(b) ; S.S.I. 2005/604, arts. 2(c), 4 F47 Words in s. 10(2) inserted (4.5.2006) by Family Law (Scotland) Act 2006 (asp 2), ss. 16(a) , 46(2); S.S.I. 2006/212, art. 2 (with art. 4) F48 Word in s. 10(2) repealed (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 16(3)(a), Sch. 30 ; S.I. 2005/3175, art. 2(6) F49 Words in s. 10(2) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 16(3)(b) ; S.S.I. 2005/604, arts. 2(c), 4 F50 Words in s. 10(2)(a) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 16(3)(c) ; S.S.I. 2005/604, arts. 2(c), 4 F51 Words in s. 10(2)(b) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 16(3)(d) ; S.S.I. 2005/604, arts. 2(c), 4 F52 Word in s. 10(3)(a) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 16(4)(a) ; S.S.I. 2005/604, arts. 2(c), 4 F53 Words in s. 10(3)(b) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 16(4)(b) ; S.S.I. 2005/604, arts. 2(c), 4 F54 S. 10(3A) inserted (4.5.2006) by Family Law (Scotland) Act 2006 (asp 2), ss. 16(b) , 46(2); S.S.I. 2006/212, art. 2 (with art. 4) F55 Words in s. 10(4) substituted (4.5.2006) by Family Law (Scotland) Act 2006 (asp 2), ss. 17(3)(a) , 46(2); S.S.I. 2006/212, art. 2 F56 S. 10(4A) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 16(5) ; S.S.I. 2005/604, arts. 2(c), 4
Document Generated: 2021-09- Changes to legislation: There are currently no known outstanding effects for the Family Law (Scotland) Act 1985. (See end of Document for details) F57 Words in s. 10(4A) substituted (4.5.2006) by Family Law (Scotland) Act 2006 (asp 2), ss. 17(3)(a) , 46(2); S.S.I. 2006/212, art. 2 F58 Word in s. 10(5) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 16(6)(a) ; S.S.I. 2005/604, arts. 2(c), 4 F59 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 ) F60 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) F61 Word in s. 10(5)(b) substituted (1.12.2000) by 1999 c. 30, s. 84, Sch. 12 Pt. I para. 8(1)(2) ; S.I. 2000/1047, art. 2(2)(d), Sch. Pt. IV F62 Words in s. 10(5) inserted (4.5.2006) by Family Law (Scotland) Act 2006 (asp 2), ss. 17(3)(b) , 46(2); S.S.I. 2006/212, art. 2 F63 Words in s. 10(5) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 16(6)(b) ; S.S.I. 2005/604, arts. 2(c), 4 F64 S. 10(5A) inserted (4.5.2006) by Family Law (Scotland) Act 2006 (asp 2), ss. 17(3)(c) , 46(2); S.S.I. 2006/212, art. 2 F65 Words in s. 10(5A) substituted (6.3.2011 for specified purposes, 6.4.2011 in so far as not already in force) by Pensions Act 2008 (c. 30), s. 149(1), Sch. 7 para. 4(a) ; S.I. 2011/664, art. 2(2)(3), Sch. Pts. 1 , 2 F66 Word in s. 10(6)(a) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 16(7)(a) ; S.S.I. 2005/604, arts. 2(c), 4 F67 Words in s. 10(6)(a) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 16(7)(a) ; S.S.I. 2005/604, arts. 2(c), 4 F68 Words in s. 10(6)(b) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 16(7)(b) ; S.S.I. 2005/604, arts. 2(c), 4 F69 Word in s. 10(6)(b) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 16(7)(b) ; S.S.I. 2005/604, arts. 2(c), 4 F70 Word in s. 10(6)(c) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 16(7)(c) ; S.S.I. 2005/604, arts. 2(c), 4 F71 Word in s. 10(6)(d) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 16(7)(d) ; S.S.I. 2005/604, arts. 2(c), 4 F72 Words in s. 10(6)(d) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 16(7)(d) ; S.S.I. 2005/604, arts. 2(c), 4 F73 Words in s. 10(6)(e) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 16(7)(e) ; S.S.I. 2005/604, arts. 2(c), 4 F74 Word in s. 10(7) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 16(8) ; S.S.I. 2005/604, arts. 2(c), 4 F75 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) F76 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 F77 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 F78 S. 10(8B)(8C) substituted for s. 10(8B) (6.3.2011 for specified purposes, 6.4.2011 in so far as not already in force) by Pensions Act 2008 (c. 30), s. 149(1), Sch. 7 para. 4(b) ; S.I. 2011/664, art. 2(2)(3), Sch. Pts. 1, 2 F79 Words in s. 10(9) inserted (4.5.2006) by Family Law (Scotland) Act 2006 (asp 2), ss. 17(3)(e) , 46(2); S.S.I. 2006/212, art. 2 F80 Words in s. 10(9) inserted (1.12.2000) by 1999 c. 30, s. 84, Sch. 12 Pt. I para. 8(1)(5) ; S.I. 2000/1047, art. 2(2)(d), Sch. Pt. IV F81 S. 10(10)(11) repealed (1.12.2000) by 1999 c. 30, s. 84, 88 , Sch. 12 Pt. I para. 8(6), Sch. 13 Pt. II ; S.I. 2000/1047, art. 2(2)(d), Sch. Pt. IV
Document Generated: 2021-09- Changes to legislation: There are currently no known outstanding effects for the Family Law (Scotland) Act 1985. (See end of Document for details)
(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.
Textual Amendments
F82 Word in s. 11(2)(a) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 17(2)(a) ; S.S.I. 2005/604, arts. 2(c), 4 F83 Words in s. 11(2)(b) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 17(2)(b) ; S.S.I. 2005/604, arts. 2(c), 4 F84 Word in s. 11(3)(g) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 17(3) ; S.S.I. 2005/604, arts. 2(c), 4 F85 Word in s. 11(4)(a)(c) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 17(4)(a) ; S.S.I. 2005/604, arts. 2(c), 4 F86 Words in s. 11(4)(b) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 17(4)(b) ; S.S.I. 2005/604, arts. 2(c), 4 F87 Word in s. 11(4)(d) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 17(4)(c) ; S.S.I. 2005/604, arts. 2(c), 4 F88 Word in s. 11(5)(a) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 17(5)(a) ; S.S.I. 2005/604, arts. 2(c), 4 F89 Words in s. 11(5)(b) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 17(5)(b) ; S.S.I. 2005/604, arts. 2(c), 4 F90 Words in s. 11(5)(c) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 17(5)(c) ; S.S.I. 2005/604, arts. 2(c), 4 F91 Word in s. 11(5)(d) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 17(5)(d) ; S.S.I. 2005/604, arts. 2(c), 4 F92 Word in s. 11(6) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 17(6) ; S.S.I. 2005/604, arts. 2(c), 4 F93 Words in s. 11(7) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 17(7) ; S.S.I. 2005/604, arts. 2(c), 4
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 [F94 or of dissolution of a civil partnership ] ; or
(b) within such period as the court on granting [F95 the 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
[F96 (a) ] either party to the marriage,
[F97 (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.
Document Generated: 2021-09-
Changes to legislation: There are currently no known outstanding effects for the Family Law (Scotland) Act 1985. (See end of Document for details)
Textual Amendments
F94 Words in s. 12(1) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 18(2)(a) ; S.S.I. 2005/604, arts. 2(c), 4 F95 Words in s. 12(1) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 18(2)(b) ; S.S.I. 2005/604, arts. 2(c), 4 F96 S. 12(4)(a) renumbered (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 18(3) ; S.S.I. 2005/604, arts. 2(c), 4 F97 S. 12(4)(b) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 18(3) ; S.S.I. 2005/604, arts. 2(c), 4
[F9812A 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 [F99 or a
partner in a civil partnership (“the liable person”) ] in circumstances where—
(a) the matrimonial property [F100 or the partnership property ] within the meaning
of section 10 of this Act includes any rights or interests in benefits under
a pension [F101 arrangement ] which the liable [F102 person ] has or may have
(whether such benefits are payable to him or in respect of his death); and
(b) those benefits include a lump sum payable to him or in respect of his death.
(2) Where the benefits referred to in subsection (1) above include a lump sum payable to
the liable [F103 person ] , the court, on making the capital sum order, may make an order
requiring the [F104 person 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
[F105 or 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 [F106 person ] , the court, on making the capital sum
order, may make an order—
(a) if the [F107 person responsible for the pension arrangement ] in question [F108 has ]
power to determine the person to whom the sum, or any part of it, is to be
paid, requiring them to pay the whole or part of that sum, when it becomes
due, to the other [F106 person ] ;
(b) if the liable [F106 person ] has power to nominate the person to whom the sum,
or any part of it, is to be paid, requiring the liable [F106 person ] to nominate the
other [F106 person ] in respect of the whole or part of that sum;
(c) in any other case, requiring the [F107 person responsible for the pension
arrangement ] in question to pay the whole or part of that sum, when it becomes
due, to the other [F106 person ] instead of to the person to whom, apart from the
order, it would be paid.
(4) Any payment by the [F109 person responsible for the pension arrangement ] under an
order under subsection (2) or (3) above—
(a) shall discharge so much of the [F110 liability of the person responsible for the
pension arrangement ] to or in respect of the liable [F106 person ] as corresponds
to the amount of the payment; and
(b) shall be treated for all purposes as a payment made by the liable [F106 person ]
in or towards the discharge of his liability under the capital sum order.
Document Generated: 2021-09-
Changes to legislation: There are currently no known outstanding effects for the Family Law (Scotland) Act 1985. (See end of Document for details)
(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;
[
F119 (b)
make provision for the recovery of the administrative expenses of complying
with such orders from the liable [F106 person ] or the other [F106 person ]].
(9) Regulations under [F120 subsections (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.
F121[
The definition of “benefits under a pension scheme” in section 27 of this Act does not
apply to this section. ]
[
F122 (11)
In subsections [F123 (7ZC) ] to (7C) “the Northern Ireland provision”, in relation to
a provision of the 2004 Act, means any provision in force in Northern Ireland
corresponding to the provision of that Act. ]]
Textual Amendments
F98 S. 12A inserted (15.7.1996 for certain purposes only and 19.8.1996 otherwise) by 1995 c. 26, s. 167(3) ; S.I. 1996/1843, art. 3 (with art. 4) F99 Words in s. 12A(1) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 19(2)(a) ; S.S.I. 2005/604, arts. 2(c), 4 F100 Words in s. 12A(1)(a) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 19(2)(b) ; S.S.I. 2005/604, arts. 2(c), 4 F101 Word in s. 12A(1)(a) substituted (1.12.2000) by 1999 c. 30, s. 84, Sch. 12 Pt. I para. 9(1)(2) ; S.I. 2000/1047, art. 2(2)(d), Sch. Pt. IV F102 Word in s. 12A(1)(a) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 19(2)(b) ; S.S.I. 2005/604, arts. 2(c), 4 F103 Word in s. 12A(2) substituted (4.5.2006) by Family Law (Scotland) Act 2006 (asp 2), s. 46(2), Sch. 2 para. 5(2) ; S.S.I. 2006/212, art. 2 F104 Words in s. 12A(2) substituted (1.12.2000) by 1999 c. 30, s. 84, Sch. 12 Pt. I para. 9(1)(3) ; S.I.2000/1047, art. 2(2)(d), Sch. Pt. IV
Document Generated: 2021-09- Changes to legislation: There are currently no known outstanding effects for the Family Law (Scotland) Act 1985. (See end of Document for details) F105 Words in s. 12A(2) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 19(3) ; S.S.I. 2005/604, arts. 2(c), 4 F106 Word in ss. 12A(3)-(8) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 19(4) ; S.S.I. 2005/604, arts. 2(c), 4 F107 Words in s. 12A(3)(a)(c) substituted (1.12.2000) by 1999 c. 30, s. 84, Sch. 12 Pt. I para. 9(1)(4) ; S.I. 2000/1047, art. 2(2)(d), Sch. Pt. IV F108 Word in s. 12A(3)(a) substituted (1.12.2000) by 1999 c. 30, s. 84, Sch. 12 Pt. I para. 9(1)(3) ; S.I. 2000/1047, art. 2(2)(d), Sch. Pt. IV F109 Words in s. 12A(4) substituted (1.12.2000) by 1999 c. 30, s. 84, Sch. 12 Pt. I para. 9(1)(5)(a) ; S.I. 2000/1047, art. 2(2)(d), Sch. Pt. IV F110 Words in s. 12A(4) subtituted (1.12.2000) by 1999 c. 30, s. 84, Sch. 12 Pt. I para. 9(1)(5)(b) ; S.I. 2000/1047, art. 2(2)(d), Sch. Pt. IV F111 Words in s. 12A(5) substituted (1.12.2000) by 1999 c. 30, s. 84, Sch. 12 Pt. I para. 9(1)(6) ; S.I. 2000/1047, art. 2(2)(d), Sch. Pt. IV F112 Words in s. 12A(6) sustituted (1.12.2000) by 1999 c. 30, s. 84, Sch. 12 Pt. I para. 9(1)(7)(a) ; S.I. 2000/1047, art. 2(2)(d), Sch. Pt. IV F113 Words in s. 12A(6) substituted (1.12.2000) by 1999 c. 30, s. 84, Sch. 12 Pt. I para. 9(1)(7)(b) ; S.I. 2000/1047, art. 2(2)(d), Sch. Pt. IV F114 Word in s. 12A(6)(b) substituted (1.12.2000) by 1999 c. 30, s. 84, Sch. 12 Pt. I para. 9(1)(7)(c) ; S.I. 2000/1047, art. 2(2)(d), Sch. Pt. IV F115 Words in s. 12A(7) substituted (1.12.2000) by 1999 c. 30, s. 84, Sch. 12 Pt. I para. 9(1)(8)(a)-(c) ; S.I. 2000/1047, art. 2(2)(d), Sch. Pt. IV F116 Ss. 12A(7ZA)-(7ZC) inserted (30.6.2006) by The Family Law (Scotland) Act 2006 (Consequential Modifications) Order 2006 (S.S.I. 2006/384), arts. 1, 8(a) F117 Word in s. 12A(7ZC) substituted (6.4.2011) by Pensions Act 2008 (c. 30), s. 149(1), Sch. 7 para. 5 ; S.I. 2011/664, art. 2(3), Sch. Pt. 2 F118 Ss. 12A(7A)-(7C) inserted (4.5.2006) by Family Law (Scotland) Act 2006 (asp 2), ss. 17(4)(a) , 46(2); S.S.I. 2006/212, art. 2 F119 S. 12A(8)(b) repealed (1.12.2000) by 1999 c. 30, s. 88, Sch. 13 Pt. II ; S.I. 2000/1047, art. 2(2)(d), Sch. Pt. IV F120 Words in s. 12A(9) substituted (4.5.2006) by Family Law (Scotland) Act 2006 (asp 2), ss. 17(4)(b) , 46(2); S.S.I. 2006/212, art. 2 F121 S. 12A(10) substituted (1.12.2000) by 1999 c. 30, ss. 84, Sch. 12 Pt. I para. 9(1)(9) F122 S. 12A(11) added (4.5.2006) by Family Law (Scotland) Act 2006 (asp 2), ss. 17(4)(c) , 46(2); S.S.I. 2006/212, art. 2 F123 Word in s. 12A(11) substituted (30.6.2006) by The Family Law (Scotland) Act 2006 (Consequential Modifications) Order 2006 (S.S.I. 2006/384), arts. 1, 8(b)
[F12412B Order for payment of capital sum: pension compensation
(1) This section applies where the court makes an order under section 8(2) for payment
of a capital sum (a “capital sum order”) by a party to a marriage or a partner in a
civil partnership (“the liable person”) in circumstances where the matrimonial or (as
the case may be) partnership property within the meaning of section 10 includes any
rights to PPF compensation.
(2) On making the capital sum order, the court may make an additional order requiring
the Board of the Pension Protection Fund, if at any time any payment in respect of
PPF compensation becomes due to the liable person, to pay the whole or part of that
payment to the other party or (as the case may be) other partner (“the other person”).
(3) Any such payment by the Board of the Pension Protection Fund—
