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(1) The Family Law (Scotland) Act 1985 (c. 37) shall be amended in accordance with subsections (2) to (5).
(2) In section 8 (orders for financial provision), after subsection (4) there shall be inserted—
“(4A) The court shall not make a pension sharing order, or an order under section 12A(2) or (3) of this Act, in relation to matrimonial property, or partnership property, consisting of compensation such as is mentioned in section 10(5A).”.
(3) In section 10 (sharing of value of property)—
(a) in each of subsections (4) and (4A), for “subsection (5)” there shall be substituted “subsections (5) and (5A)”;
(b) in subsection (5), after “(4)(b)” there shall be inserted “or (4A)(b)”;
(c) after subsection (5) there shall be inserted—
“(5A) Where either person is entitled to compensation payable under Chapter 3 of Part 2 of the Pensions Act 2004 (c. 35) or any provision in force in Northern Ireland corresponding to that Chapter, the proportion of the compensation which is referable to the period to which subsection (4)(b) or (4A)(b) above refers shall be taken to form part of the matrimonial property or partnership property.”;
(d) after subsection (8A) there shall be inserted—
“(8B) The Scottish Ministers may by regulations make provision for or in connection with the verification, or apportionment, of compensation such as is mentioned in subsection (5A).”; and
(e) in subsection (9), after “(8)” there shall be inserted “or (8B)”.
(4) In section 12A (orders for payment of capital sum: pensions lump sum)—
(a) after subsection (7) there shall be inserted—
“(7A) Where—
(a) the court makes an order under subsection (3); and
(b) after the making of the order the Board gives the trustees or managers of the scheme a notice under section 160 of the Pensions Act 2004 (c. 35) (“the 2004 Act”), or the Northern Ireland provision, in relation to the scheme,
the order shall, on the giving of such notice, be recalled.
(7B) Subsection (7C) applies where—
(a) the court makes an order under subsection (2) imposing requirements on the trustees or managers of an occupational pension scheme; and
(b) after the making of the order the Board gives the trustees or managers of the scheme a notice under section 160 of the 2004 Act, or the Northern Ireland provision, in relation to the scheme.
(7C) The order shall have effect from the time when the notice is given—
(a) as if—
(i) references to the trustees or managers of the scheme were references to the Board; and
(ii) references to any lump sum to which the person with benefits under a pension arrangement is or might become entitled under the scheme were references to the amount of any compensation payable under that Chapter of the 2004 Act, or the Northern Ireland provision, to which that person is or might become entitled in respect of the lump sum; and
(b) subject to such other modifications as may be prescribed by regulations by the Scottish Ministers.”;
(b) in subsection (9), for “subsection” there shall be substituted “subsections (7C)(b) and”; and
(c) after subsection (10) there shall be added—
“(11) In subsections (7A) to (7C) “the Northern Ireland provision”, in relation to a provision of the 2004 Act, means any provision in force in Northern Ireland corresponding to the provision of that Act.”.
(5) In section 16 (agreements on financial provision), after subsection (2A) there shall be inserted—
“(2B) Subsection (2C) applies where—
(a) the parties to a marriage or the partners in a civil partnership have entered into an agreement as to financial provision to be made on divorce or on dissolution of the civil partnership; and
(b) the agreement includes provision in respect of a person’s rights or interests or benefits under an occupational pension scheme.
(2C) The Board of the Pension Protection Fund’s subsequently assuming responsibility for the occupational pension scheme in accordance with Chapter 3 of Part 2 of the Pension Act 2004 (c. 35) or any provision in force in Northern Ireland corresponding to that Chapter shall not affect—
(a) the power of the court under subsection (1)(b) to make an order setting aside or varying the agreement or any term of it;
(b) on an appeal, the powers of the appeal court in relation to the order.”.
In subsection (2) of section 14 of the Family Law (Scotland) Act 1985 (c. 37) (incidental orders), after paragraph (j) there shall be inserted—
“(ja) 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;”.
(1) Subsections (2) and (3) apply where—
(a) heritable property is held in the name of—
(i) a person (“A”) and A’s spouse (“B”) and the survivor of them;
(ii) A, B and another person and the survivor or survivors of them;
(iii) A with a special destination on A’s death, in favour of B;
(b) A and B’s marriage is terminated by divorce or annulment; and
(c) after the divorce or annulment A dies.
(2) In relation to the succession to A’s heritable property (or part of it) under the destination, B shall be deemed to have failed to survive A.
(3) If a person has in good faith and for value (whether by purchase or otherwise) acquired title to the heritable property, the title so acquired shall not be challengeable on the ground that, by virtue of subsection (2), the property falls to the estate of A.
(4) Subsection (2) shall not apply if the destination specifies that B is to take under the destination despite the termination of A and B’s marriage by divorce or annulment.
(1) Section 7 of the Family Law (Scotland) Act 1985 (c. 37) (agreements on aliment) shall be amended as follows.
(2) After subsection (2) there shall be inserted—
“(2ZA) On an application under subsection (2) above, the court may—
(a) pending determination of the application, make such interim order as it thinks fit;
(b) make an order backdating a variation of the amount payable under the agreement to—
(i) the date of the application or such later date as the court thinks fit; or
(ii) on special cause shown, a date prior to the date of the application.
(2ZB) 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.
(2ZC) Nothing in subsection (2ZA) shall empower the court to substitute a lump sum for a periodical payment.”.
(3) In subsection (4), for “subsection (2) above” there shall be substituted “this section”.
(1) The Law Reform (Parent and Child) (Scotland) Act 1986 (c. 9) shall be amended in accordance with subsections (2) to (4).
(2) In section 1 (legal equality of children)—
(a) for subsection (1) there shall be substituted—
“(1) No person whose status is governed by Scots law shall be illegitimate; and accordingly the fact that a person’s parents are not or have not been married to each other shall be left out of account in—
(a) determining the person’s legal status; or
(b) establishing the legal relationship between the person and any other person.”;
(b) in subsection (4), in paragraph (a), for the words from “this”, where it first occurs, to the end of that paragraph there shall be substituted “section 21 of the Family Law (Scotland) Act 2006 (asp 2)”; and
(c) after that subsection there shall be added—
“(5) In subsection (4), “enactment” includes an Act of the Scottish Parliament.
(6) It shall no longer be competent to bring an action for declarator of legitimacy, legitimation or illegitimacy.”.
(3) The title of section 1 shall become “Abolition of status of illegitimacy”.
(4) In subsection (1) of section 9 (savings and supplementary provisions)—
(a) in paragraph (c), at the end, there shall be inserted “(including, in particular, the competence of bringing an action of declarator of legitimacy, legitimation or illegitimacy in connection with such succession or devolution)”; and
(b) after that paragraph, there shall be inserted—
“(ca) affect the functions of the Lord Lyon King of Arms so far as relating to the granting of arms;”.
(1) Subsection (2) applies where—
(a) the parents of a child are domiciled in the same country as each other; and
(b) the child has a home with a parent or a home (or homes) with both of them.
(2) The child shall be domiciled in the same country as the child’s parents.
(3) Where subsection (2) does not apply, the child shall be domiciled in the country with which the child has for the time being the closest connection.
(4) In this section, “child” means a person under 16 years of age.
(1) Section 3 of the Children (Scotland) Act 1995 (c. 36) (provisions relating both to parental responsibilities and parental rights) shall be amended in accordance with subsections (2) and (3).
(2) In paragraph (b) of subsection (1) (cases in which parents have parental responsibilities and parental rights)—
(a) the words from “married” to the end shall become sub-paragraph (i) of that paragraph; and
(b) at the end there shall be added “or
(ii) where not married to the mother at that time or subsequently, the father is registered as the child’s father under any of the enactments mentioned in subsection (1A).”.
(3) After subsection (1) there shall be inserted—
“(1A) Those enactments are—
(a) section 18(1)(a), (b)(i) and (c) and (2)(b) of the Registration of Births, Deaths and Marriages (Scotland) Act 1965 (c. 49);
(b) sections 10(1)(a) to (e) and 10A(1)(a) to (e) of the Births and Deaths Registration Act 1953 (c. 20); and
(c) article 14(3)(a) to (e) of the Births and Deaths Registration (Northern Ireland) Order 1976 (S.I. 1976/1041).”.
(4) Paragraph (b)(ii) of subsection (1) of section 3 of the Children (Scotland) Act 1995 (c. 36) (which is inserted by subsection (2)(b)) shall not confer parental responsibilities or parental rights on a man who, before the coming into force of subsections (2) and (3), was registered under any of the enactments mentioned in subsection (1A) of that section (which is inserted by subsection (3)).
After subsection (7) of section 11 of the Children (Scotland) Act 1995 (c. 36) (court orders relating to parental responsibilities etc.) there shall be inserted—
“(7A) In carrying out the duties imposed by subsection (7)(a) above, the court shall have regard in particular to the matters mentioned in subsection (7B) below.
(7B) Those matters are—
(a) the need to protect the child from—
(i) any abuse; or
(ii) the risk of any abuse,
which affects, or might affect, the child;
(b) the effect such abuse, or the risk of such abuse, might have on the child;
(c) the ability of a person—
(i) who has carried out abuse which affects or might affect the child; or
(ii) who might carry out such abuse,
to care for, or otherwise meet the needs of, the child; and
(d) the effect any abuse, or the risk of any abuse, might have on the carrying out of responsibilities in connection with the welfare of the child by a person who has (or, by virtue of an order under subsection (1), would have) those responsibilities.
(7C) In subsection (7B) above—
“abuse” includes —
violence, harassment, threatening conduct and any other conduct giving rise, or likely to give rise, to physical or mental injury, fear, alarm or distress;
abuse of a person other than the child; and
domestic abuse;
“conduct” includes—
speech; and
presence in a specified place or area.
(7D) Where—
(a) the court is considering making an order under subsection (1) above; and
(b) in pursuance of the order two or more relevant persons would have to co-operate with one another as respects matters affecting the child,
the court shall consider whether it would be appropriate to make the order.
(7E) In subsection (7D) above, “relevant person”, in relation to a child, means—
(a) a person having parental responsibilities or parental rights in respect of the child; or
(b) where a parent of the child does not have parental responsibilities or parental rights in respect of the child, a parent of the child.”.
(1) In sections 26 to 29, “cohabitant” means either member of a couple consisting of—
(a) a man and a woman who are (or were) living together as if they were husband and wife; or
(b) two persons of the same sex who are (or were) living together as if they were civil partners.
(2) In determining for the purposes of any of sections 26 to 29 whether a person (“A”) is a cohabitant of another person (“B”), the court shall have regard to—
(a) the length of the period during which A and B have been living together (or lived together);
(b) the nature of their relationship during that period; and
(c) the nature and extent of any financial arrangements subsisting, or which subsisted, during that period.
(3) In subsection (2) and section 28, “court” means Court of Session or sheriff.
(1) Subsection (2) applies where any question arises (whether during or after the cohabitation) as to the respective rights of ownership of cohabitants in any household goods.
(2) It shall be presumed that each cohabitant has a right to an equal share in household goods acquired (other than by gift or succession from a third party) during the period of cohabitation.
(3) The presumption in subsection (2) shall be rebuttable.
(4) In this section, “household goods” means any goods (including decorative or ornamental goods) kept or used at any time during the cohabitation in any residence in which the cohabitants are (or were) cohabiting for their joint domestic purposes; but does not include—
(a) money;
(b) securities;
(c) any motor car, caravan or other road vehicle; or
(d) any domestic animal.
(1) Subsection (2) applies where, in relation to cohabitants, any question arises (whether during or after the cohabitation) as to the right of a cohabitant to—
(a) money derived from any allowance made by either cohabitant for their joint household expenses or for similar purposes; or
(b) any property acquired out of such money.
(2) Subject to any agreement between the cohabitants to the contrary, the money or property shall be treated as belonging to each cohabitant in equal shares.
(3) In this section “property” does not include a residence used by the cohabitants as the sole or main residence in which they live (or lived) together.
(1) Subsection (2) applies where cohabitants cease to cohabit otherwise than by reason of the death of one (or both) of them.
(2) On the application of a cohabitant (the “applicant”), the appropriate court may, after having regard to the matters mentioned in subsection (3)—
(a) make an order requiring the other cohabitant (the “defender”) to pay a capital sum of an amount specified in the order to the applicant;
(b) make an order requiring the defender to pay such amount as may be specified in the order in respect of any economic burden of caring, after the end of the cohabitation, for a child of whom the cohabitants are the parents;
(c) make such interim order as it thinks fit.
(3) Those matters are—
(a) whether (and, if so, to what extent) the defender has derived economic advantage from contributions made by the applicant; and
(b) whether (and, if so, to what extent) the applicant has suffered economic disadvantage in the interests of—
(i) the defender; or
(ii) any relevant child.
(4) In considering whether to make an order under subsection (2)(a), the appropriate court shall have regard to the matters mentioned in subsections (5) and (6).
(5) The first matter is the extent to which any economic advantage derived by the defender from contributions made by the applicant is offset by any economic disadvantage suffered by the defender in the interests of—
(a) the applicant; or
(b) any relevant child.
(6) The second matter is the extent to which any economic disadvantage suffered by the applicant in the interests of—
(a) the defender; or
(b) any relevant child,
is offset by any economic advantage the applicant has derived from contributions made by the defender.
(7) In making an order under paragraph (a) or (b) of subsection (2), the appropriate court may specify that the amount shall be payable—
(a) on such date as may be specified;
(b) in instalments.
(8) Any application under this section shall be made not later than one year after the day on which the cohabitants cease to cohabit.
(9) In this section—
“appropriate court” means—
where the cohabitants are a man and a woman, the court which would have jurisdiction to hear an action of divorce in relation to them if they were married to each other;
where the cohabitants are of the same sex, the court which would have jurisdiction to hear an action for the dissolution of the civil partnership if they were civil partners of each other;
“child” means a person under 16 years of age;
“contributions” includes indirect and non-financial contributions (and, in particular, any such contribution made by looking after any relevant child or any house in which they cohabited); and
“economic advantage” includes gains in—
capital;
income; and
earning capacity;
and “economic disadvantage” shall be construed accordingly.
(10) For the purposes of this section, a child is “relevant” if the child is—
(a) a child of whom the cohabitants are the parents;
(b) a child who is or was accepted by the cohabitants as a child of the family.
(1) This section applies where—
(a) a cohabitant (the “deceased”) dies intestate; and
(b) immediately before the death the deceased was—
(i) domiciled in Scotland; and
(ii) cohabiting with another cohabitant (the “survivor”).
(2) Subject to subsection (4), on the application of the survivor, the court may—
(a) after having regard to the matters mentioned in subsection (3), make an order—
(i) for payment to the survivor out of the deceased’s net intestate estate of a capital sum of such amount as may be specified in the order;
(ii) for transfer to the survivor of such property (whether heritable or moveable) from that estate as may be so specified;
(b) make such interim order as it thinks fit.
(3) Those matters are—
(a) the size and nature of the deceased’s net intestate estate;
(b) any benefit received, or to be received, by the survivor—
(i) on, or in consequence of, the deceased’s death; and
(ii) from somewhere other than the deceased’s net intestate estate;
(c) the nature and extent of any other rights against, or claims on, the deceased’s net intestate estate; and
(d) any other matter the court considers appropriate.
(4) An order or interim order under subsection (2) shall not have the effect of awarding to the survivor an amount which would exceed the amount to which the survivor would have been entitled had the survivor been the spouse or civil partner of the deceased.
(5) An application under this section may be made to—
(a) the Court of Session;
(b) a sheriff in the sheriffdom in which the deceased was habitually resident at the date of death;
(c) if at the date of death it is uncertain in which sheriffdom the deceased was habitually resident, the sheriff at Edinburgh.
(6) Any application under this section shall be made before the expiry of the period of 6 months beginning with the day on which the deceased died.
(7) In making an order under paragraph (a)(i) of subsection (2), the court may specify that the capital sum shall be payable—
(a) on such date as may be specified;
(b) in instalments.
(8) In making an order under paragraph (a)(ii) of subsection (2), the court may specify that the transfer shall be effective on such date as may be specified.
(9) If the court makes an order in accordance with subsection (7), it may, on an application by any party having an interest, vary the date or method of payment of the capital sum.
(10) In this section—
“intestate” shall be construed in accordance with section 36(1) of the Succession (Scotland) Act 1964 (c. 41);
“legal rights” has the meaning given by section 36(1) of the Succession (Scotland) Act 1964 (c. 41);
“net intestate estate” means so much of the intestate estate as remains after provision for the satisfaction of—
inheritance tax;
other liabilities of the estate having priority over legal rights and the prior rights of a surviving spouse or surviving civil partner; and
the legal rights, and the prior rights, of any surviving spouse or surviving civil partner; and
“prior rights” has the meaning given by section 36(1) of the Succession (Scotland) Act 1964 (c. 41).
In section 13 of the Administration of Justice Act 1982 (c. 53) (supplementary provisions and definitions in relation to Part 2), in the definition of relative, after paragraph (b) insert—
“(ba) any person, not being the civil partner of the injured person, who was, at the time of the act or omission giving rise to liability in the responsible person, living with the injured person as the civil partner of the injured person;”.
(1) The 1981 Act shall be amended in accordance with subsections (2) and (3).
(2) In subsection (3) of section 18 (cohabiting couples: occupancy rights and application of certain provisions of Act), for the words from “sections”, where it first occurs, to “17” there shall be substituted “section 13”.
(3) After section 18 there shall be inserted—
(1) In section 18B, “domestic interdict” means—
(a) an interdict granted on the application of a person (“A”) who is (or was) living with another person (“B”) as if they were husband and wife against B for any of the purposes mentioned in subsection (2); or
(b) an interdict granted on the application of a person (“C”) who is (or was) living with another person (“D”) as if they were civil partners against D for any of the purposes mentioned in subsection (2).
(2) Those purposes are—
(a) restraining or prohibiting such conduct of the defender towards—
(i) the pursuer; or
(ii) any child in the permanent or temporary care of the pursuer,
as the court may specify;
(b) prohibiting the defender from entering or remaining in—
(i) a family home occupied by the pursuer and the defender;
(ii) any other residence occupied by the pursuer;
(iii) any place of work of the pursuer;
(iv) any school attended by a child in the permanent or temporary care of the pursuer.
(3) In this section and in section 18B—
“family home” means, subject to subsection (4), any house, caravan, houseboat or other structure which has been provided or has been made available by the pursuer or the defender (or both of them) as (or has become) a family residence for them and includes any garden or other ground or building usually occupied with, or otherwise required for the amenity or convenience of, the house, caravan, houseboat or other structure; but does not include a residence provided or made available by any person for the pursuer or, as the case may be, the defender to reside in (whether or not with any child of the pursuer and the defender) separately from the defender or, as the case may be, the pursuer; and
“interdict” includes interim interdict.
(4) If the tenancy of a family home is transferred from a pursuer to a defender (or, as the case may be, from a defender to a pursuer) by agreement or under any enactment, the home shall, on such transfer, cease to be a family home.
(5) In subsection (3), “child of the pursuer and the defender” includes any child or grandchild of the pursuer or the defender, and any person who has been brought up or treated by the pursuer or the defender as if the person were a child of the pursuer or, as the case may be, the defender, whatever the age of such a child, grandchild or person.
Family Law (Scotland) Act 2006