Family Law (Scotland) Act 1985

1985 CHAPTER 37

Contents

Go to Preamble

1. Aliment

   1. 1. Obligation of aliment

   2. 2. Actions for aliment

   3. 3. Powers of court in action for aliment

   4. 4. Amount of aliment

   5. 5. Variation or recall of decree of aliment

   6. 6. Interim aliment

   7. 7. Agreements on aliment

2. Financial provision on divorce, etc

   1. 8. Orders for financial provision

   2. 8A. Pension sharing orders: apportionment of charges

   3. 9. Principles to be applied

   4. 10. Sharing of value of matrimonial property

   5. 11. Factors to be taken into account

   6. 12. Orders for payment of capital sum or transfer of property

   7. 12A. Orders for payment of capital sum: pensions lump sums

   8. 13. Orders for periodical allowance

   9. 14. Incidental orders

   10. 15. Rights of third parties

   11. 16. Agreements on financial provision

   12. 17. Financial provision on declarator of nullity of marriage

3. Supplemental

   1. 18. Orders relating to avoidance transactions

   2. 19. Inhibition and arrestment

   3. 20. Provision of details of resources

   4. 21. Award of aliment or custody where divorce or separation refused

   5. 22. Expenses of action

   6. 23. Actions for aliment of small amounts

4. Matrimonial property, etc

   1. 24. Marriage not to affect property rights or legal capacity

   2. 25. Presumption of equal shares in household goods

   3. 26. Presumption of equal shares in money and property derived from housekeeping allowance

5. General

   1. 27. Interpretation

   2. 28. Amendments, repeals and savings

   3. 29. Citation, commencement and extent

6. SCHEDULE 1

   Minor and Consequential Amendments

7. SCHEDULE 2

   Repeals

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:—

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;

(c)a father or mother to his or her child;

(d)a person to a child (other than a child who has been boarded out with him by a local or other public authority or a voluntary organisation) who has been accepted by him as a child of his family.

(2)For the purposes of this Act, an obligation of aliment is an obligation to provide such support as is reasonable in the circumstances, having regard to the matters to which a court is required or entitled to have regard under section 4 of this Act in determining the amount of aliment to award in an action for aliment.

(3)Any obligation of aliment arising under a decree or by operation of law and subsisting immediately before the commencement of this Act shall, except insofar as consistent with this section, cease to have effect as from the commencement of this Act.

(4)Nothing in this section shall affect any arrears due under a decree at the date of termination or cessation of an obligation of aliment, nor any rule of law by which a person who is owed an obligation of aliment may claim aliment from the executor of a deceased person or from any person enriched by the succession to the estate of a deceased person.

(5)In subsection (1) above—

• “child” means a person—

(a)under the age of 18 years; or

(b)over that age and under the age of 25 years who is reasonably and appropriately undergoing instruction at an educational establishment, or training for employment or for a trade, profession or vocation;

• “husband” and “wife” include the parties to a valid polygamous marriage.

2 Actions for aliment

(1)A claim for aliment only (whether or not expenses are also sought) may be made, against any person owing an obligation of aliment, in the Court of Session or the sheriff court.

(2)Unless the court considers it inappropriate in any particular case, a claim for aliment may also be made, against any person owing an obligation of aliment, in proceedings—

(a)for divorce, separation, declarator of marriage or declarator of nullity of marriage;

(b)relating to orders for financial provision;

[ F1(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 F2 . . .;

(c)on behalf of a child under the age of 18 years, by—

(i)the [F3parent or guardian] of the child;

F4(ii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[ F5(iii)a person with whom the child lives or who is seeking a residence order (within the meaning of section 11(2)(c) of the Children (Scotland) Act 1995) in respect of the child.]

(5)A woman (whether married or not) may bring an action for aliment on behalf of her unborn child as if the child had been born, but no such action shall be heard or disposed of prior to the birth of the child.

(6)It shall be competent to bring an action for aliment, notwithstanding that the person for or on behalf of whom aliment is being claimed is living in the same household as the defender.

(7)It shall be a defence to an action for aliment brought by virtue of subsection (6) above that the defender is fulfilling the obligation of aliment, and intends to continue doing so.

(8)It shall be a defence to an action for aliment by or on behalf of a person other than a child under the age of 16 years that the defender is making an offer, which it is reasonable to expect the person concerned to accept, to receive that person into his household and to fulfil the obligation of aliment.

(9)For the purposes of subsection (8) above, in considering whether it is reasonable to expect a person to accept an offer, the court shall have regard among other things to any conduct, decree or other circumstances which appear to the court to be relevant: but the fact that a husband and wife have agreed to live apart shall not of itself be regarded as making it unreasonable to expect a person to accept such an offer.

(10)A person bringing an action for aliment under subsection (4)(c) above may give a good receipt for aliment paid under the decree in the action.

3 Powers of court in action for aliment

(1)The court may, if it thinks fit, grant decree in an action for aliment, and in granting such decree shall have power—

(a)to order the making of periodical payments, whether for a definite or an indefinite period or until the happening of a specified event;

(b)to order the making of alimentary payments of an occasional or special nature, including payments in respect of inlying, funeral or educational expenses;

(c)to backdate an award of aliment under this Act—

(i)to the date of the bringing of the action or to such later date as the court thinks fit; or

(ii)on special cause shown, to a date prior to the bringing of the action;

(d)to award less than the amount claimed even if the claim is undisputed.

(2)Nothing in subsection (1) above shall empower the court to substitute a lump sum for a periodical payment.

4 Amount of aliment

(1)In determining the amount of aliment to award in an action for aliment, the court shall, subject to subsection (3) below, have regard—

(a)to the needs and resources of the parties;

(b)to the earning capacities of the parties;

(c)generally to all the circumstances of the case.

(2)Where two or more parties owe an obligation of aliment to another person, there shall be no order of liability, but the court, in deciding how much, if any, aliment to award against any of those persons, shall have regard, among the other circumstances of the case, to the obligation of aliment owed by any other person.

(3)In having regard under subsection (1)(c) above generally to all the circumstances of the case, the court—

(a)may, if it thinks fit, take account of any support, financial or otherwise, given by the defender to any person whom he maintains as a dependant in his household, whether or not the defender owes an obligation of aliment to that person; and

(b)shall not take account of any conduct of a party unless it would be manifestly inequitable to leave it out of account.

[ F1(4)Where a court makes an award of aliment in an action brought by or on behalf of a child under the age of 16 years, it may include in that award such provision as it considers to be in all the circumstances reasonable in respect of the expenses incurred wholly or partly by the person having care of the child for the purpose of caring for the child.]

5 Variation or recall of decree of aliment

(1)A decree granted in an action for aliment brought before or after the commencement of this Act may, on an application by or on behalf of either party to the action, be varied or recalled by an order of the court if since the date of the decree there has been a material change of circumstances.

[F1(1A)Without prejudice to the generality of subsection (1) above, the making of a maintenance assessment 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.

6 Interim aliment

(1)A claim for interim aliment shall be competent—

(a)in an action for aliment, by the party who claims aliment against the other party;

(b)in an action for divorce, separation, declarator of marriage or declarator of nullity of marriage, by either party against the other party.

on behalf of the claimant and any person on whose behalf he is entitled to act under section 2(4) of this Act.

(2)Where a claim under subsection (1) above has been made, then, whether or not the claim is disputed, the court may award by way of interim aliment the sum claimed or any lesser sum or may refuse to make such an award.

(3)An award under subsection (2) above shall consist of an award of periodical payments payable only until the date of the disposal of the action in which the award was made or such earlier date as the court may specify.

(4)An award under subsection (2) above may be varied or recalled by an order of the court; and the provisions of this section shall apply to an award so varied and the claim therefor as they applied to the original award and the claim therefor.

7 Agreements on aliment

(1)Any provision in an agreement which purports to exclude future liability for aliment or to restrict any right to bring an action for aliment shall have no effect unless the provision was fair and reasonable in all the circumstances of the agreement at the time it was entered into.

(2)Where a person who owes an obligation of aliment to another person has entered into an agreement to pay aliment to or for the benefit of the other person, on a material change of circumstances application may be made to the court by or on behalf of either person for variation of the amount payable under the agreement or for termination of the agreement.

[F1(2A)Without prejudice to the generality of subsection (2) above, the making of a maintenance assessment with respect to a child to whom or for whose benefit aliment is payable under such an agreement is a material change of circumstances for the purposes of that sub section.]

(3)Subsections (8) and (9) of section 2 of this Act (which afford a defence to an action for aliment in certain circumstances) shall apply to an action to enforce such an agreement as is referred to in subsection (2) above as they apply to an action for aliment.

(4)In subsection (2) above “the court” means the court which would have jurisdiction and competence to entertain an action for aliment between the parties to the agreement to which the application under that subsection relates.

(5)In this section “agreement” means an agreement entered into before or after the commencement of this Act and includes a unilateral voluntary obligation.

Financial provision on divorce, etc

8 Orders for financial provision

(1)In an action for divorce, either party to the marriage may apply to the court for one or more of the following orders—

(a)an order for the payment of a capital sum . . . F1to him by the other party to the marriage;

[F2(aa)an order for the transfer of property to him by the other party to the marriage;]

(b)an order for the making of a periodical allowance to him by the other party to the marriage;

[F3(baa)a pension sharing order.]

[ F4(ba)an order under section 12A(2) or (3) of this Act;]

(c)an incidental order within the meaning of section 14(2) of this Act.

(2)Subject to sections 12 to 15 of this Act, where an application has been made under subsection (1) above, the court shall make such order, if any, as is—

(a)justified by the principles set out in section 9 of this Act; and

(b)reasonable having regard to the resources of the parties.

(3)An order under subsection (2) above is in this Act referred to as an “order for financial provision”.

[ F5(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.

(5)Where, as regards a pension arrangement, the parties to a marriage have in effect a qualifying agreement which contains a term relating to pension sharing, the court shall not—

(a)make an order under section 12A(2) or (3) of this Act; or

(b)make a pension sharing order,

relating to the arrangement unless it also sets aside the agreement or term under section 16(1)(b) of this Act.

(6)The court shall not make a pension sharing order in relation to the rights of a person under a pension arrangement if there is in force an order under section 12A(2) or (3) of this Act which relates to benefits or future benefits to which he is entitled under the pension arrangement.

(7)In subsection (5) above—

(a)“term relating to pension sharing” shall be construed in accordance with section 16(2A) of this Act; and

(b)“qualifying agreement” has the same meaning as in section 28(3) of the Welfare Reform and Pensions Act 1999.]

[F18A Pension sharing orders: apportionment of charges

If a pension sharing order relates to rights under a pension arrangement, the court may include in the order provision about the apportionment between the parties of any charge under section 41 of the Welfare Reform and Pensions Act 1999 (charges in respect of pension sharing costs) or under corresponding Northern Ireland legislation.]

9 Principles to be applied

(1)The principles which the court shall apply in deciding what order for financial provision, if any, to make are that—

(a)the net value of the matrimonial property should be shared fairly between the parties to the marriage;

(b)fair account should be taken of any economic advantage derived by either party from contributions by the other, and of any economic disadvantage suffered by either party in the interests of the other party or of the family;

(c)any economic burden of caring, after divorce, for a child of the marriage under the age of 16 years should be shared fairly between the parties;

(d)a party who has been dependent to a substantial degree on the financial support of the other party 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;

(e)a party who at the time of the divorce seems likely to suffer serious financial hardship as a result of the divorce 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 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; and includes indirect and non-financial contributions and, in particular, any such contribution made by looking after the family home or caring for the family.

10 Sharing of value of matrimonial property

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

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

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

(b)during the marriage,

which are outstanding at that date.

(3)In this section “the relevant date” means whichever is the earlier of—

(a)subject to subsection (7) below, the date on which the parties ceased to cohabit;

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

(4)Subject to subsection (5) below, in this section and in section 11 of this Act “the matrimonial property” means all the property belonging to the parties or either of them at the relevant date which was acquired by them or him (otherwise than by way of gift or succession from a third party)—

(a)before the marriage for use by them as a family home or as furniture or plenishings for such home; or

(b)during the marriage but before the relevant date.

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

[F1(a)]under a life policy [F2or similar arrangement; and

(b)in any benefits under a pension [F3arrangement] which either party has or may have (including such benefits payable in respect of the death of either party),

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

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

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

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

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

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

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

(7)For the purposes of subsection (3) above no account shall be taken of any cessation of cohabitation where the parties thereafter resumed cohabitation, except where the parties ceased to cohabit for a continuous period of 90 days or more before resuming cohabitation for a period or periods of less than 90 days in all.

[F4 [F5(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.]

[F6(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.]