Family Law (Scotland) Act 1985

Aliment

Obligation of aliment

1

• (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;

• (bb) a partner in a civil partnership to the other partner,

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

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

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

• (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—under the age of 18 years; orover 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.

Actions for aliment

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• (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;

• (aa) for dissolution of a civil partnership, separation of civil partners or declarator of nullity of a civil partnership,

• (b) relating to orders for financial provision;

• (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 ... ;

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

• (i) the parent or guardian of the child;

• (ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (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 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.

• (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.

Powers of court in action for aliment

3

• (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.

Amount of aliment

4

• (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.

• (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.

Variation or recall of decree of aliment

5

• (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.

• (1A) 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.

• (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.

Interim aliment

6

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

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

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

• (c) in an action for dissolution of a civil partnership, separation of civil partners or declarator of nullity of a civil partnership, by either partner against the other partner,

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

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

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

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

Agreements on aliment

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• (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.

• (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.

• (2A) 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.

• (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 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.

• (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.

Orders for financial provision

8

• (1) 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—

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

• (aa) an order for the transfer of property to him by the other party to the action;

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

• (baa) a pension sharing order.

• (bab) a pension compensation sharing order;

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

• (bb) an order under section 12B(2);

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

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

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

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

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

• (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.

• (4A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) 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—

• (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.

• (8) The court shall not, in the same proceedings, make both a pension compensation sharing order and an order under section 12B(2) in relation to the same PPF compensation.

• (9) The court shall not make a pension compensation sharing order in relation to rights to PPF compensation that—

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

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

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

• (d) are the subject of an order made under section 12B(2) in relation to the marriage or (as the case may be) civil partnership or a previous one between the same persons.

• (10) Where, as regards PPF compensation, the parties to a marriage or the partners in a civil partnership have in effect a qualifying agreement which contains a term relating to pension compensation sharing, the court shall not—

• (a) make an order under section 12B(2); or

• (b) make a pension compensation sharing order,

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

• (11) For the purposes of subsection (10)—

• (a) the expression “term relating to pension compensation sharing” is to be construed by reference to section 16(2AA) of this Act; and

• (b) a qualifying agreement is one to which section 110(1) of the Pensions Act 2008 relates.

Principles to be applied

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• (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 or as the case may be the net value of the partnership property should be so shared between the partners in the civil partnership;

• (b) 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;

• (c) any economic burden of caring,

• (i) after divorce, for a child of the marriage under the age of 16 years

• (ii) after dissolution of the civil partnership, for a child under that age who has been accepted by both partners as a child of the family or in respect of whom they are, by virtue of sections 33 and 42 of the Human Fertilisation and Embryology Act 2008, the parents,

should be shared fairly between the persons;

• (d) 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

• (i) the date of the decree of divorce, to the loss of that support on divorce,