OpenLegislation

Family Law (Scotland) Act 1985 in England

1985 c. 37 · Enacted 16 July 1985 · Extends to United Kingdom

Up to date with all changes known to legislation.gov.uk, revised to 1 June 2021.

Contents

  1. 3Powers of court in action for aliment.
  2. 8APension sharing orders: apportionment of charges.
  3. 8BPension compensation sharing orders: apportionment of charges
  4. 12BOrder for payment of capital sum: pension compensation
  5. 15Rights of third parties.
  6. 20Provision of details of resources.
  7. 23Actions for aliment of small amounts.
  8. General
  9. 28Amendments, repeals and savings.
  10. Schedule 1: Minor and Consequential Amendments
  11. 1Paragraph 1
  12. 2Paragraph 2
  13. The Maintenance Orders Act 1950 (c. 37)
  14. 3Paragraph 3
  15. 4Paragraph 4
  16. 5Paragraph 5
  17. The Maintenance Orders (Reciprocal Enforcement) Act 1972 (c. 18)
  18. 6Paragraph 6
  19. 7Paragraph 7
  20. 8Paragraph 8
  21. 9Paragraph 9
  22. 10Paragraph 10
  23. 11Paragraph 11
  24. 12Paragraph 12
  25. 13Paragraph 13

3Powers 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.

8APension sharing orders: apportionment of charges.F1

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.

8BPension compensation sharing orders: apportionment of chargesF1

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.

12BOrder for payment of capital sum: pension compensationF1

(1)

This section applies where the court makes an order under section 8(2) for payment of a capital sum (a “capital sum order”) by a party to a marriage or a partner in a civil partnership (“the liable person”) in circumstances where the matrimonial or (as the case may be) partnership property within the meaning of section 10 includes any rights to PPF compensation.

(2)

On making the capital sum order, the court may make an additional order requiring the Board of the Pension Protection Fund, if at any time any payment in respect of PPF compensation becomes due to the liable person, to pay the whole or part of that payment to the other party or (as the case may be) other partner (“the other person”).

(3)

Any such payment by the Board of the Pension Protection Fund—

(a)

shall discharge so much of its liability to the liable person as corresponds to the amount of the payment, and

(b)

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.

(4)

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.

(5)

The court may not make an additional order under subsection (2) in relation to rights to PPF compensation that—

(a)

derive from rights under a pension scheme which is subject to an order made under section 12A(2) or (3) in relation to the marriage or (as the case may be) civil partnership or a previous one between the same persons,

(b)

derive from rights under a pension scheme which were at any time the subject of a pension sharing order in relation to the marriage or (as the case may be) civil partnership or a previous one between the same persons,

(c)

are or have been the subject of a pension compensation sharing order in relation to the marriage or (as the case may be) civil partnership or a previous one between the same persons, or

(d)

are the subject of an order made under subsection (2) in relation to the marriage or (as the case may be) civil partnership or a previous one between the same persons.

15Rights of third parties.

(1)

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.

(2)

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.

(3)

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.

20Provision of details of resources.

In an action—

(a)

for aliment;

(b)

which includes a claim for an order for financial provision; or

(c)

which includes a claim for interim aliment,

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.

23Actions for aliment of small amounts.

For section 3 of the M1Sheriff Courts (Civil Jurisdiction and Procedure) (Scotland) Act 1963 there shall be substituted the following section—

“ Actions for aliment of small amounts.

3
(1)

An action under section 2 of the Family Law (Scotland) Act 1985 for aliment only (whether or not expenses are also sought) may be brought before the sheriff as a summary cause if the aliment claimed in the action does not exceed—

(a)

in respect of a child under the age of 18 years, the sum of £35 per week; and

(b)

in any other case, the sum of £70 per week;

and any provision in any enactment limiting the jurisdiction of the sheriff in a summary cause by reference to any amount, or limiting the period for which a decree granted by him shall have effect, shall not apply in relation to such an action.

(2)

Without prejudice to any other enactment, the sheriff shall have jurisdiction in an action for aliment brought as a summary cause by virtue of subsection (1) above if—

(a)

the pursuer resides within the jurisdiction of the sheriff, and

(b)

the action could, by virtue of section 6 of the principal Act (which relates to jurisdiction), have been brought in the sheriff court of another sheriffdom.

(3)

The Lord Advocate may by order vary the amounts prescribed in paragraphs (a) and (b) of subsection (1) above.

(4)

The power to make an order under subsection (3) above shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament and shall include power to vary or revoke any order made thereunder.”

28Amendments, repeals and savings.E1

(1)

The enactments specified in Schedule 1 to this Act shall have effect subject to the amendments set out therein.

(2)

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.

(3)

Nothing in subsection (2) above shall affect the operation of section 5 (orders for financial provision) of the M1Divorce (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—

(a)

to make an order for payment of periodical allowance under subsection (2) thereof; and

(b)

to vary such an order under subsection (4) thereof,

shall include power to make such an order for a definite or an indefinite period or until the happening of a specified event.

1

In section 5 of the Sheriff Courts (Scotland) Act 1907 (jurisdiction), for subsection (2) there shall be substituted the following subsection—

“(2)

Actions for aliment or separation (other than any action mentioned in subsection (2A) below) and actions for regulating the custody of children:”.

2

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”.

3

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”.

4

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”.

5

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”.

6

In section 31 of the Maintenance Orders (Reciprocal Enforcement) Act 1972 (application by person in convention country for recovery of maintenance in Scotland—

(a)

for subsection (1A) there shall be substituted the following subsections—

“(1A)

Proceedings arising out of an application under subsection (1) above shall be treated as an action for aliment within the meaning of the Family Law (Scotland) Act 1985 and, subject to subsections (1B) to (1D) below, the provisions of that Act relating to aliment shall apply in relation to claims for maintenance in such proceedings and decrees therein.

(1B)

Without prejudice to subsection (2) below, any proceedings mentioned in subsection (1A) above shall be brought in the sheriff court.

(1C)

In its application to proceedings mentioned in subsection (1A) above, section 5 of the said Act of 1985 (power to vary or recall decree of aliment) shall be subject to section 34(1) of this Act.

(1D)

Where an application under subsection (1) above is for the recovery of maintenance from a person who is a former spouse of the applicant—

(a)

then, for the purposes of the said Act of 1985, there shall be assumed to be an obligation of aliment within the meaning of that Act owed by the former spouse to the applicant;

(b)

section 2(7) and (8) of that Act shall not apply; and

(c)

an order for payment of maintenance in proceedings arising out of the application—

(i)

shall, if subsisting at the death of the party making the payment, continue to operate against that party’s estate, but without prejudice to the power of the court to vary or recall the order; and

(ii)

shall cease to have effect on the re-marriage or death of the party receiving payment, except in relation to any arrears due under it”;

(b)

after subsection (4) there shall be inserted the following new subsection—

“(4A)

In subsection (4)(i) above the reference to the dissolution of a marriage by divorce shall be construed as including a reference to the annulment of a purported marriage and any reference to a marriage, a divorce, a divorced person, a former spouse or divorce proceedings shall be construed accordingly.”; and

(c)

subsection (5) shall cease to have effect.

7

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”.

8

In section 2(2) of the Matrimonial Proceedings (Polygamous Marriages) Act 1972 (decrees in respect of polygamous marriages)—

(a)

for paragraphs (d) and (e) there shall be substituted the following paragraphs—

“(d)

a decree of separation;

(e)

a decree of aliment;”; and

(b)

after the word “ancillary” there shall be inserted the words “or incidental”.

9

In Schedule 2 to the Domicile and Matrimonial Proceedings Act 1973 (ancillary and collateral orders)—

(a)

before paragraph 3, there shall be inserted the following paragraph—

“2A

Any enactment or rule of law empowering a court to make an order for payment of aliment (including interim aliment).”; and

(b)

after paragraph 12A, there shall be inserted the following paragraph—

“12B

Section 8 (orders for financial provision on divorce), section 17(1) (financial provision on declarator of nullity of marriage) and section 18 (orders relating to avoidance transactions) of the Family Law (Scotland) Act 1985.”

10

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”.

11

For section 13(2) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 (transfer of tenancy) there shall be substituted the following subsection—

“(2)

In an action—

(a)

for divorce, the Court of Session or a sheriff;

(b)

for nullity of marriage, the Court of Session,

may, on granting decree or within such period as the court may specify on granting decree, make an order granting an application under subsection (1) above.”

12

After section 29 of the Matrimonial and Family Proceedings Act 1984 there shall be inserted the following new section—

“ Application of Part IV to annulled marriages.

29A

This Part of this Act shall apply to an annulment, of whatever nature, of a purported marriage, as it applies to a divorce, and references to marriage and divorce shall be construed accordingly.”.

13

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”.