Breastfeeding in the context of Zika virus: interim guidance
From the commencement of this Act, an obligation of aliment shall be owed by, and only by—
a husband to his wife;
a wife to her husband;
a father or mother to his or her child;
a partner in a civil partnership to the other partner,
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.
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.
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.
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.
In subsection (1) above—
" child " means a person—
any provision corresponding to the provisions mentioned in paragraph (a) or (b) in force in Northern Ireland.
setting aside or varying any transfer of, or transaction involving, property effected by the other person not more than 5 years before the date of the making of the claim; or
“husband” and “wife” include the parties to a valid polygamous marriage.
interdicting the other person from effecting any such transfer or transaction.
“child” means a person—
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.
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—
for divorce, separation, declarator of marriage or declarator of nullity of marriage;
relating to orders for financial provision;
for dissolution of a civil partnership, separation of civil partners or declarator of nullity of a civil partnership,
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;
concerning parentage or legitimacy;
of any other kind, where the court considers it appropriate to include a claim for aliment.
In this Act “action for aliment” means a claim for aliment in proceedings referred to in subsection (1) or (2) above.
An action for aliment may be brought—
by a person (including a child) to whom the obligation of aliment is owed;
by the curator bonis of an incapax ... ;
on behalf of a child under the age of 18 years, by—
the parent or guardian of the child;
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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.
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.
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.
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.
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.
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 or 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.
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.
The court may, if it thinks fit, grant decree in an action for aliment, and in granting such decree shall have power—
to order the making of periodical payments, whether for a definite or an indefinite period or until the happening of a specified event;
to order the making of alimentary payments of an occasional or special nature, including payments in respect of inlying, funeral or educational expenses;
to backdate an award of aliment under this Act—
to the date of the bringing of the action or to such later date as the court thinks fit; or
on special cause shown, to a date prior to the bringing of the action;
to award less than the amount claimed even if the claim is undisputed.
Nothing in subsection (1) above shall empower the court to substitute a lump sum for a periodical payment.
In determining the amount of aliment to award in an action for aliment, the court shall, subject to subsection (3) below, have regard—
to the needs and resources of the parties;
to the earning capacities of the parties;
generally to all the circumstances of the case.
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.
In having regard under subsection (1)(c) above generally to all the circumstances of the case, the court—
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
shall not take account of any conduct of a party unless it would be manifestly inequitable to leave it out of account.
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.
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.
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.
Without prejudice to the generality of subsection (1) above, the making of a maintenance assessmentmaintenance 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.
On an application under subsection (1) above, the court may, pending determination of the application, make such interim order as it thinks fit.
Where the court backdates an order under subsection (1) above, the court may order any sums paid under the decree to be repaid.
A claim for interim aliment shall be competent— on behalf of the claimant and any person on whose behalf he is entitled to act under section 2(4) of this Act.
in an action for aliment, by the person who claims aliment against the other person;
in an action for divorce, separation, declarator of marriage or declarator of nullity of marriage, by either party against the other party.
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,
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.
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.
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.
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.
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.
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.
On an application under subsection (2) above, the court may—
pending determination of the application, make such interim order as it thinks fit;
make an order backdating a variation of the amount payable under the agreement to—
the date of the application or such later date as the court thinks fit; or
on special cause shown, a date prior to the date of the application.
In this 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.
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.
In this section “agreement” means an agreement entered into before or after the commencement of this Act and includes a unilateral voluntary obligation.
Nothing in subsection (2ZA) shall empower the court to substitute a lump sum for a periodical payment.
Without prejudice to the generality of subsection (2) above, the making of a maintenance assessmentmaintenance 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.
In an action for divorce, either party to the marriage 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—
an order for the payment of a capital sum ... to him by the other party to the action;
an order for the making of a periodical allowance to him by the other party to the action;
an order for the transfer of property to him by the other party to the action;
an incidental order within the meaning of section 14(2) of this Act.
a pension sharing order.
a pension compensation sharing order;
an order under section 12A(2) or (3) of this Act;
an order under section 12B(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—
justified by the principles set out in section 9 of this Act; and
reasonable having regard to the resources of the parties.
An order under subsection (2) above is in this Act referred to as an “order for financial provision”.
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.
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Where, as regards a pension arrangement, 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 sharing, the court shall not— relating to the arrangement unless it also sets aside the agreement or term under section 16(1)(b) of this Act.
make an order under section 12A(2) or (3) of this Act; or
make a pension sharing order,
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.
In subsection (5) above—
“term relating to pension sharing” shall be construed in accordance with section 16(2A) of this Act; and
“qualifying agreement” has the same meaning as in section 28(3) of the Welfare Reform and Pensions Act 1999.
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.
The court shall not make a pension compensation sharing order in relation to rights to PPF compensation that—
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,
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,
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
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.
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— relating to the compensation unless it also sets aside the agreement or term under section 16(1)(b) of this Act.
make an order under section 12B(2); or
make a pension compensation sharing order,
For the purposes of subsection (10)—
the expression “term relating to pension compensation sharing” is to be construed by reference to section 16(2AA) of this Act; and
a qualifying agreement is one to which section 110(1) of the Pensions Act 2008 relates.
The principles which the court shall apply in deciding what order for financial provision, if any, to make are that—
the net value of the matrimonial property should be shared fairly between the parties to the marriage or as the case may be the net value of the partnership property should be so shared between the partners in the civil partnership;
fair account should be taken of any economic advantage derived by either person from contributions by the other, and of any economic disadvantage suffered by either person in the interests of the other person or of the family;
any economic burden of caring, should be shared fairly between the persons;
after divorce, for a child of the marriage under the age of 16 years
after dissolution of the civil partnership, for a child of the civil partnership, under that age ...,
a person who has been dependent to a substantial degree on the financial support of the other 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
the date of the decree of divorce, to the loss of that support on divorce,
the date of the decree of dissolution of the civil partnership, to the loss of that support on dissolution,
a person who at the time of the divorce or of the dissolution of the civil partnership, seems likely to suffer serious financial hardship as a result of the divorce or dissolution should be awarded such financial provision as is reasonable to relieve him of hardship over a reasonable period.
In subsection (1)(b) above and section 11(2) of this Act—
" contributions " means contributions made whether before or during the marriage; 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.
“contributions” means contributions made whether before or during the marriage 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.
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.
In applying the principle set out in section 9(1)(a) of this Act, the net value of the matrimonial property or partnership property shall be taken to be shared fairly between persons when it is shared equally or in such other proportions as are justified by special circumstances.
Subject to subsection (3A) below, the net value of the ... property shall be the value of the property at the relevant date after deduction of any debts incurred by one or both of the parties to the marriage or as the case may be of the partners — which are outstanding at that date.
before the marriage so far as they relate to the matrimonial property or before the registration of the partnership so far as they relate to the partnership property, and
during the marriage or partnership,
In this section “the relevant date” means whichever is the earlier of—
subject to subsection (7) below, the date on which the persons ceased to cohabit;
the date of service of the summons in the action for divorce or for dissolution of the civil partnership.
Subject to subsections (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)—
before the marriage for use by them as a family home or as furniture or plenishings for such home; or
during the marriage but before the relevant date.
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—
in subsection (2) above, for “relevant date” there were substituted “ appropriate valuation date ”;
after that subsection there were inserted—; and
subsection (3) did not apply.
The proportion of any rights or interests of either person 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.
under a life policy or similar arrangement; and
in any benefits under a pension arrangement which either person has or may have (including such benefits payable in respect of the death of either party),
In subsection (1) above “special circumstances”, without prejudice to the generality of the words, may include—
the terms of any agreement between the persons on the ownership or division of any of the matrimonial property or partnership property;
the source of the funds or assets used to acquire any of the matrimonial property or partnership property where those funds or assets were not derived from the income or efforts of the persons during the marriage or partnership;
any destruction, dissipation or alienation of property by either person;
the nature of the matrimonial property or partnership property, the use made of it (including use for business purposes or as a family home) and the extent to which it is reasonable to expect it to be realised or divided or used as security;
the actual or prospective liability for any expenses of valuation or transfer of property in connection with the divorce or the dissolution of the civil partnership.
Subject to subsections (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)—
before the registration of the partnership for use by them as a family home or as furniture or plenishings for such a home, or
during the partnership but before the relevant date.
For the purposes of subsection (3) above no account shall be taken of any cessation of cohabitation where the persons thereafter resumed cohabitation, except where the persons 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.
Where either person is entitled to PPF compensation, 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.
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.
Regulations under subsection (8) above may include—
provision for calculation or verification in accordance with guidance from time to time prepared by a prescribed person; and
provision by reference to regulations under section 30 or 49(4) of the Welfare Reform and Pensions Act 1999.
The Scottish Ministers may by regulations make provision for the purposes of this Act about—
calculation and verification of PPF compensation,
apportionment of PPF compensation.
Regulations under subsection (8B) may include provision—
for calculation or verification in a manner approved by a prescribed person,
by reference to regulations under section 112 of the Pensions Act 2008.
Regulations under subsection (8) or (8B) above 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.
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The court may include in a pension compensation sharing order provision about apportionment between the parties of any charge under section 117 of the Pensions Act 2008 or under corresponding Northern Ireland legislation.
In applying the principles set out in section 9 of this Act, the following provisions of this section shall have effect.
For the purposes of section 9(1)(b) of this Act, the court shall have regard to the extent to which—
the economic advantages or disadvantages sustained by either person have been balanced by the economic advantages or disadvantages sustained by the other person, and
any resulting imbalance has been or will be corrected by a sharing of the value of the matrimonial property or the partnership property or otherwise.
For the purposes of section 9(1)(c) of this Act, the court shall have regard to—
any decree or arrangement for aliment for the child;
any expenditure or loss of earning capacity caused by the need to care for the child;
the need to provide suitable accommodation for the child;
the age and health of the child;
the educational, financial and other circumstances of the child;
the availability and cost of suitable child-care facilities or services;
the needs and resources of the persons; and
all the other circumstances of the case.
For the purposes of section 9(1)(d) of this Act, the court shall have regard to—
the age, health and earning capacity of the person who is claiming the financial provision;
the duration and extent of the dependence of that person prior to divorce or to the dissolution of the civil partnership;
any intention of that person to undertake a course of education or training;
the needs and resources of the persons; and
all the other circumstances of the case.
For the purposes of section 9(1)(e) of this Act, the court shall have regard to—
the age, health and earning capacity of the person who is claiming the financial provision;
the duration of the marriage or of the civil partnership;
the standard of living of the persons during the marriage or civil partnership;
the needs and resources of the persons; and
all the other circumstances of the case.
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 person 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.
In applying the principles set out in section 9 of this Act, the court shall not take account of the conduct of either party to the marriage or as the case may be of either partner unless—
the conduct has adversely affected the financial resources which are relevant to the decision of the court on a claim for financial provision; or
in relation to section 9(1)(d) or (e), it would be manifestly inequitable to leave the conduct out of account.
An order under section 8(2) of this Act for payment of a capital sum or transfer of property may be made—
on granting decree of divorce or of dissolution of a civil partnership; or
within such period as the court on granting the decree may specify.
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.
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.
Where an order referred to in subsection (1) above has been made, the court may, on an application by on a material change of circumstances, vary the date or method of payment of the capital sum or the date of transfer of property.
either party to the marriage,
either partner,
An order under section 8(2) of this Act for a periodical allowance may be made—
on granting decree of divorce or of dissolution of a civil partnership;
within such period as the court on granting the decree may specify; or
after such decree where—
no such order has been made previously;
application for the order has been made after the date of decree; and
since the date of decree there has been a change of circumstances.
The court shall not make an order for a periodical allowance under section 8(2) of this Act unless—
the order is justified by a principle set out in paragraph (c), (d) or (e) of section 9(1) of this Act; and
it is satisfied that an order for payment of a capital sum or for transfer of property, or a pension sharing order or pension compensation sharing order, under that section would be inappropriate or insufficient to satisfy the requirements of the said section 8(2).
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.
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 executor, or as the case may be either partner or his executor,, have power by subsequent order—
to vary or recall the order for a periodical allowance;
to backdate such variation or recall to the date of the application therefor or, on cause shown, to an earlier date;
to convert the order into an order for payment of a capital sum or for a transfer of property.
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.
Without prejudice to the generality of subsection (4) above, the making of a maintenance assessmentmaintenance 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.
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.
An order for a periodical allowance made under section 8(2) of this Act—
shall, if subsisting at the death of the person making the payment, continue to operate against that person’s estate, but without prejudice to the making of an order under subsection (4) above;
shall cease to have effect on the person receiving payment— except in relation to any arrears due under it.
marrying,
entering into a civil partnership, or
dying,
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 or of dissolution of a civil partnership.
In this Act, “an incidental order” means one or more of the following orders—
an order for the sale of property;
an order for the valuation of property;
an order determining any dispute between the parties to the marriage, or as the case may be the partners, as to their respective property rights by means of a declarator thereof or otherwise;
an order regulating the occupation of or the use of furniture and plenishings therein or excluding either person from such occupation;
the matrimonial home or
the family home of the partnership,
an order regulating liability, as between the persons, for outgoings in respect of or furniture or plenishings therein;
the matrimonial home or
the family home of the partnership,
an order that security shall be given for any financial provision;
an order that payments shall be made or property transferred to any curator bonis or trustee or other person for the benefit of the person by whom or on whose behalf application has been made under section 8(1) of this Act for an incidental order;
an order setting aside or varying any term in an antenuptial or postnuptial marriage settlement or in any corresponding settlement in respect of the civil partnership;
an order as to the date from which any interest on any amount awarded shall run;
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.
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;
An incidental order referred to in subsection (2)(d) or (e) above may be made only on or after the granting of the decree.
An incidental order may be varied or recalled by subsequent order on cause shown.
Where a claim has been made (whether before or after the commencement of this Act), being—
section 2(1), (2), (5)(a) and (9) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 (which confer certain general powers of management on a spouse in relation to a matrimonial home), and
In subsection (1), in the definition of “pension sharing order”—
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
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.
subject to section 15 (3) of this Act, section 12 of the said Act of 1981 and section 114 of the Bankruptcy (Scotland) Act 2016 (which protect the occupancy rights of a spouse against arrangements intended to defeat them),
In subsection (1), in the definition of “pension compensation sharing order”, the reference to shareable rights to PPF compensation is to rights in relation to which pension compensation sharing is available under Chapter 1 of Part 3 of the Pensions Act 2008 or under corresponding Northern Ireland legislation.
In this Act—
“PPF compensation” means compensation payable under the pension compensation provisions,
shall, except to the extent that the order otherwise provides, apply in relation to the order— 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.
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;
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
with any other necessary modifications; and
In subsection (2)(h) above, “settlement” includes a settlement by way of a policy of assurance to which section 2 of the Married Women’s Policies of Assurance (Scotland) Act 1880 relates.
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— shall, except to the extent that the order otherwise provides, apply in relation to the order in accordance with subsection (5B).
section 102(1), (2), (5)(a) and (9) of the Civil Partnership Act 2004, and
subject to section 15(3) of this Act, section 111 of that Act,
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 or of dissolution of a civil partnership.
Those provisions apply—
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,
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
with any other necessary modification.
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.
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.
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.
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 or a partner in a civil partnership (“the liable person”) in circumstances where—
the matrimonial property or the partnership property within the meaning of section 10 of this Act includes any rights or interests in benefits under a pension arrangement which the liable person has or may have (whether such benefits are payable to him or in respect of his death); and
those benefits include a lump sum payable to him or in respect of his death.
Where the benefits referred to in subsection (1) above include a lump sum payable to the liable person, the court, on making the capital sum order, may make an order requiring the 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 or as the case may be to the other partner (“the other person”).
Where the benefits referred to in subsection (1) above include a lump sum payable in respect of the death of the liable person, the court, on making the capital sum order, may make an order—
if the person responsible for the pension arrangement in question 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 person;
if the liable person has power to nominate the person to whom the sum, or any part of it, is to be paid, requiring the liable person to nominate the other person in respect of the whole or part of that sum;
in any other case, requiring the person responsible for the pension arrangement in question to pay the whole or part of that sum, when it becomes due, to the other person instead of to the person to whom, apart from the order, it would be paid.
Any payment by the person responsible for the pension arrangement under an order under subsection (2) or (3) above—
shall discharge so much of the liability of the person responsible for the pension arrangement to or in respect of the liable person as corresponds to the amount of the payment; and
shall be treated for all purposes as a payment made by the liable person in or towards the discharge of his liability under the capital sum order.
Where the liability of the liable person under the capital sum order has been discharged in whole or in part, other than by a payment by the person 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.
Where— the order shall have effect as if it had been made instead in respect of the person responsible for the new arrangement; and in this subsection “transfer credits” has the same meaning as in the Pension Schemes Act 1993.
an order under subsection (2) or (3) above imposes any requirement on the person responsible for a pension arrangement (“the first arrangement”) and the liable person acquires transfer credits under another arrangement (“the new arrangement”) which are derived (directly or indirectly) from a transfer from the first arrangement of all his accrued rights under that ; and
the person responsible for the new arrangement has been given notice in accordance with regulations under subsection (8) below,
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 person responsible for the pension arrangement specified in the order the person responsible for any other pension arrangement under which any lump sum referred to in subsection (1) above is payable to the liable person or in respect of his death.
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).
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.
For the purpose only of giving effect to subsection (7), the court may deal with an order under subsection (2) so that it–
is addressed to the Board of the Pension Protection Fund instead of the person responsible for a pension arrangement; and
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.
Where— the order shall, on the giving of such notice, be recalled.
the court makes an order under subsection (3); and
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,
Subsection (7C) applies where—
the court makes an order under subsection (2) imposing requirements on the trustees or managers of an occupational pension scheme; and
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.
The order shall have effect from the time when the notice is given—
as if—
references to the trustees or managers of the scheme were references to the Board; and
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
subject to such other modifications as may be prescribed by regulations by the Scottish Ministers.
The Secretary of State may by regulations—
require notices to be given in respect of changes of circumstances relevant to orders under subsection (2) or (3) above;
make provision for the recovery of the administrative expenses of complying with such orders from the liable person or the other person .
Regulations under 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.
The definition of “benefits under a pension scheme” in section 27 of this Act does not apply to this section.
In subsections (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.
Where 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, the court may make an order setting aside or varying—
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
the agreement or any term of it where the agreement was not fair and reasonable at the time it was entered into.
The court may make an order—
under subsection (1)(a) above at any time after granting decree of divorce or of dissolution of the civil partnership; and
under subsection (1)(b) above, if the agreement contains neither a term relating to pension sharing nor a term relating to pension compensation sharing, on granting decree of divorce or of dissolution of the civil partnership or within such time as the court may specify on granting decree of divorce or of dissolution of the civil partnership; or
under subsection (1)(b) above, if the agreement contains a term relating to pension sharing or pension compensation sharing—
where the order sets aside the agreement or sets aside or varies the term relating to pension sharing or (as the case may be) the term relating to pension compensation sharing, on granting decree of divorce or of dissolution of the civil partnership; and
where the order sets aside or varies any other term of the agreement, on granting decree of divorce or of dissolution of the civil partnershipor within such time thereafter as the court may specify on granting decree of divorce or of dissolution of the civil partnership.
Without prejudice to subsections (1) and (2) above, where 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— the court may, on or at any time after granting decree of divorce or of dissolution of the civil partnership, make an order setting aside or varying any term of the agreement relating to the periodical allowance.
the estate of the person by whom any periodical allowance is payable under the agreement has, since the date when the agreement was entered into, been sequestrated, the award of sequestration has not been recalled and the person has not been discharged;
an analogous remedy within the meaning of section 17(7) of the Bankruptcy (Scotland) Act 2016 has, since that date, come into force and remains in force in respect of that person's estate; ...
that person's estate is being administered by a trustee acting under a voluntary trust deed granted since that date by the person for the benefit of his creditors generally or is subject to an analogous arrangement, ; or
by virtue of the making of a maintenance calculationmaintenance calculation, child support maintenance has become payable by either party to the agreement with respect to a child to whom or for whose benefit periodical allowance is paid under that agreement,
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.
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.
For the purpose of subsection (2), a term relating to pension compensation sharing is a term corresponding to provision which may be made in a pension compensation sharing order and satisfying the requirements set out in section 109(g) of the Pensions Act 2008.
In this section, “agreement” means an agreement entered into before or after the commencement of this Act.
Subsection (2C) applies where—
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
the agreement includes provision in respect of a person's rights or interests or benefits under an occupational pension scheme.
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—
the power of the court under subsection (1)(b) to make an order setting aside or varying the agreement or any term of it;
on an appeal, the powers of the appeal court in relation to the order.
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.
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”).
Any such payment by the Board of the Pension Protection Fund—
shall discharge so much of its liability to the liable person as corresponds to the amount of the payment, and
shall be treated for all purposes as a payment made by the liable person in or towards the discharge of the person's liability under the capital sum order.
Where the liability of the liable person under the capital sum order has been discharged in whole or in part, other than by a payment by the Board of the Pension Protection Fund, the court may, on an application by any person having an interest, recall the order or vary the amount specified in such an order as appears to the court appropriate in the circumstances.
The court may not make an additional order under subsection (2) in relation to rights to PPF compensation that—
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,
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,
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
are the subject of an order made under subsection (2) in relation to the marriage or (as the case may be) civil partnership or a previous one between the same persons.
Subject to the following provisions of this section, the provisions of this Act shall apply to actions for declarator of nullity of marriage or of a civil partnership as they apply to actions for divorce or 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 and “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”, “divorce” and “dissolution of a civil partnership” shall be construed accordingly.
In an action for declarator of nullity of marriage or of nullity of a civil partnership, it shall be competent for either party to claim interim aliment under section 6(1) of this Act notwithstanding that he denies the existence of the marriage or civil partnership.
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.
an action for aliment,
a claim for an order for financial provision, or
an application for variation or recall of a decree in such an action or of an order for financial provision,
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.
An order under subsection (2) above shall not prejudice any rights of a third party in or to the property where that third party—
has in good faith acquired the property or any of it or any rights in relation to it for value; or
derives title to such property or rights from any person who has done so.
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.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Where a claim has been made, being— 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.
an action for aliment, or
a claim for an order for financial provision,
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.
This section is without prejudice to section 1 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1966 (wages, pensions, etc, to be exempt from arrestment on the dependence of an action).
In an action— 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.
for aliment;
which includes a claim for an order for financial provision; or
which includes a claim for interim aliment,
A court which refuses a decree of divorce, separation or dissolution of a civil partnership shall not, by virtue of such refusal, be prevented from making an order for aliment ... or an incidental order determining any dispute between the persons as to their respective property rights.
The expenses incurred by a person in pursuing or defending— shall not be regarded as necessaries for which the other party to the marriage or the other partner in the civil partnership is liable.
an action for aliment brought— on his own behalf against the other party or partner,
by either party to a marriage, or
by either party in a civil partnership,
an action for divorce, separation (whether of the parties to a marriage or the civil partners in a civil partnership), declarator of marriage or declarator of nullity of marriage;
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,
an action for dissolution of a civil partnership, declarator that a civil partnership exists or declarator of nullity of a civil partnership,
For section 3 of the Sheriff Courts (Civil Jurisdiction and Procedure) (Scotland) Act 1963 there shall be substituted the following section—
Subject to the provisions of any enactment (including this Act), marriage or civil partnership shall not of itself affect—
the respective rights of the parties to the marriage, or as the case may be the partners in the civil partnership, in relation to their property;
the legal capacity of those parties or partners.
Nothing in subsection (1) above affects the law of succession.
If any question arises (whether during or after a marriage or civil partnership) as to the respective rights of ownership of the parties to a marriage or the partners in a civil partnership in any household goods obtained in prospect of or during the marriage or 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.
For the purposes of subsection (1) above, the contrary shall not be treated as proved by reason only that while and living together the goods in question were purchased from a third party by either party alone or by both in unequal shares.
the parties were married
the partners were in civil partnership,
In this section “household goods” means any goods (including decorative or ornamental goods) kept or used at any time during the marriage or civil partnership in any family home for the joint domestic purposes of the parties to the marriage or the partners, other than—
money or securities;
any motor car, caravan or other road vehicle;
any domestic animal.
If any question arises (whether during or after a marriage or civil partnership) as to the right of a party to a marriage or as the case may be of a partner in a civil partnership to money derived from any allowance made by either party or 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 or partner in equal shares.
In this Act, unless the context otherwise requires—
" marriage ", in relation to an action for declarator of nullity of marriage, means purported marriage;
“action” means an action brought after the commencement of this Act;
“child” includes a child whether or not his parents have ever been married to or in a civil partnership with one another, and any reference to the child of a marriage or the child of a civil partnership (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;
the person 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—
"caravan" means a caravan which is mobile or affixed to the land;
Chapter 1 of Part 3 of the Pensions Act 2008 and any regulations or order made under it,
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.
The enactments specified in Schedule 1 to this Act shall have effect subject to the amendments set out therein.
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.
Nothing in subsection (2) above shall affect the operation of section 5 (orders for financial provision) of the Divorce (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— shall include power to make such an order for a definite or an indefinite period or until the happening of a specified event.
to make an order for payment of periodical allowance under subsection (2) thereof; and
to vary such an order under subsection (4) thereof,
This Act may be cited as the Family Law (Scotland) Act 1985.
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.
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.
So much of section 28 of, and Schedule 1 to, this Act as affects the operation of the Maintenance Orders Act 1950 and the Maintenance 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.
Section 28(1).
In section 5 of the Sheriff Courts (Scotland) Act 1907 (jurisdiction), for subsection (2) there shall be substituted the following subsection—.
In section 3(3) of the Guardianship of Infants Act 1925 (orders for custody and access not enforceable while parents living together), for the words from the beginning to the word “accrue” there shall be substituted the words “No such order for custody or education shall be enforceable”.
In section 16(2)(b)(i) of the Maintenance Orders Act 1950 (enforcement of maintenance orders in other parts of the United Kingdom), at the end there shall be added the words “or an order for financial provision in the form of a monetary payment under section 8 of the Family Law (Scotland) Act 1985”.
In section 33(2) of the Succession (Scotland) Act 1964 (construction of references to legal rights in marriage contracts), at the end there shall be added the words “or section 8 of the Family Law (Scotland) Act 1985”.
In section 8(1) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1966 (variation and recall of certain orders regarding custody and maintenance), at the end of paragraph (c) there shall be added the words “or section 8 of the Family Law (Scotland) Act 1985”.
In section 31 of the Maintenance Orders (Reciprocal Enforcement) Act 1972 (application by person in convention country for recovery of maintenance in Scotland—
for subsection (1A) there shall be substituted the following subsections—;
after subsection (4) there shall be inserted the following new subsection—; and
subsection (5) shall cease to have effect.
In section 39 of that Act, in the definition of “maintenance”, for the words “as a periodical allowance” there shall be substituted the words “by one former spouse for the support of the other”.
In section 2(2) of the Matrimonial Proceedings (Polygamous Marriages) Act 1972 (decrees in respect of polygamous marriages)—
for paragraphs (d) and (e) there shall be substituted the following paragraphs—; and
after the word “ancillary” there shall be inserted the words “or incidental”.
In Schedule 2 to the Domicile and Matrimonial Proceedings Act 1973 (ancillary and collateral orders)—
before paragraph 3, there shall be inserted the following paragraph—; and
after paragraph 12A, there shall be inserted the following paragraph—
In section 12(3)(b) of the Land Registration (Scotland) Act 1979 (circumstances in which there is no entitlement to indemnity for loss), at the end there shall be added the words “or has been set aside or varied by an order under section 18(2) (orders relating to avoidance transactions) of the Family Law (Scotland) Act 1985”.
For section 13(2) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 (transfer of tenancy) there shall be substituted the following subsection—
After section 29 of the Matrimonial and Family Proceedings Act 1984 there shall be inserted the following new section—.
In section 30(1) of that Act (interpretation of Part IV), in the definition of “order for financial provision”, for the words from “paragraphs (a)” to “1976” there shall be substituted the words “section 8(1) of the Family Law (Scotland) Act 1985”.
Section 28(2). Chapter Short title Extent of repeal 24 & 25 Vict. c. 86. The Conjugal Rights (Scotland) Amendment Act 1861. In section 6, the words from “be held and considered” to “as if she were unmarried, and”; the words “the same shall”; and the words from “provided that if any such wife” to the end of the section. In section 9, the word “maintenance”. Sections 15 and 16. 44 & 45 Vict. c. 21. The Married Women’s Property (Scotland) Act 1881. Sections 1 to 5. Section 8. The Schedule. 10 & 11 Geo. 5. c. 54. The Married Women’s Property (Scotland) Act 1920. The whole Act. 15 & 16 Geo. 5. c. 45. The Guardianship of Infants Act 1925. Section 3(2). In section 5(4), the words from “and may further order” to the end of the subsection. Section 8. 20 & 21 Geo. 5. c. 33. The Illegitimate Children (Scotland) Act 1930. Section 1. In section 2, in subsection (1), the words “or in any action for aliment for an illegitimate child”, and subsection (2). Section 3. Section 5. 22 & 23 Geo. 5. c. 47. The Children and Young Persons (Scotland) Act 1932. Section 73(1)(b) and (3). 2 & 3 Geo. 6. c. 4. The Custody of Children (Scotland) Act 1939. In section 1, in subsection (1) the word “maintenance” and subsection (2). 14 Geo. 6. c. 37. The Maintenance Orders Act 1950. Section 6(2). In section 7, the words from “whether” to “maintenance of the pupil child”. 15 & 16 Geo. 6 & 1 Eliz. 2. c. 41. The Affiliation Orders Act 1952. The whole Act. 6 & 7 Eliz. 2. c. 40. The Matrimonial Proceedings (Children) Act 1958. In section 7, in subsection (1), the word “maintenance”, and subsection (2). In section 9(1), the word “maintenance”. 1964 c. 19. The Married Women’s Property Act 1964. The whole Act. 1972 c. 18. The Maintenance Orders (Reciprocal Enforcement) Act 1972. Section 31(5). 1973 c. 45. The Domicile and Matrimonial Proceedings Act 1973. In Schedule 2, paragraphs 1 and 2. 1976 c. 39. The Divorce (Scotland) Act 1976. Sections 5 to 8. 1978 c. 22. The Domestic Proceedings and Magistrates’ Courts Act 1978. Section 60(1)(a). In Schedule 2, paragraph 1(a). 1981 c. 59. The Matrimonial Homes (Family Protection) (Scotland) Act 1981. Section 7(5). 1982 c. 27. The Civil Jurisdiction and Judgments Act 1982. In paragraph 1 of Schedule 9, the words “for adherence and aliment or”. 1983 c. 12. The Divorce Jurisdiction, Court Fees and Legal Aid (Scotland) Act 1983. In Schedule 1, paragraphs 21 and 23. 1984 c. 15. The Law Reform (Husband and Wife) (Scotland) Act 1984. In Schedule 1, paragraphs 3, 4 and 6.