Family Law (Scotland) Act 1985

16 Agreements on financial provision. S

(1) Where the parties to a marriage have entered into an agreement as to financial provision to be made on divorce, the court may make an order setting aside or varying—

(a) 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

(b) the agreement or any term of it where the agreement was not fair and reasonable at the time it was entered into.

(2) The court may make an order—

(a) under subsection (1)(a) above at any time after granting decree of divorce; and

[F1 (b) under subsection (1)(b) above, if the agreement does not contain a term relating to pension sharing, on granting decree of divorce or within such time as the court may specify on granting decree of divorce; or

(c) under subsection (1)(b) above, if the agreement contains a term relating to pension sharing—

(i) where the order sets aside the agreement or sets aside or varies the term relating to pension sharing, on granting decree of divorce; and

(ii) where the order sets aside or varies any other term of the agreement, on granting decree of divorce or within such time thereafter as the court may specify on granting decree of divorce.]

[F2 (2A) 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.]

(3) Without prejudice to subsections (1) and (2) above, where the parties to a marriage have entered into an agreement as to financial provision to be made on divorce and—

(a) the estate of the party 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 party has not been discharged;

(b) an analogous remedy within the meaning of section 10(5) of the Bankruptcy (Scotland) Act 1985 has, since that date, come into force and remains in force in respect of that party’s estate; F3 . . .

(c) that party’s estate is being administered by a trustee acting under a voluntary trust deed granted since that date by the party for the benefit of his creditors generally or is subject to an analogous arrangement,

[F4 ; or

(d) by virtue of the making of a maintenance calculation , child support mainten ance 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,]

the court may, on or at any time after granting decree of divorce, make an order setting aside or varying any term of the agreement relating to the periodical allowance.

(4) 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.

(5) In this section, “agreement” means an agreement entered into before or after the commencement of this Act.

Annotations:

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Amendments (Textual)

F1 S. 16(2)(b)(c) substituted for s. 16(2)(b) (1.12.2000) by 1999 c. 30, s. 84, Sch. 12 Pt. I para. 11; S.I. 2000/1047, art. 2(2)(d), Sch. Pt. IV

F2 S. 16(2A) inserted (1.12.2000) by 1999 c. 30, s. 84, Sch. 12 Pt. I para. 11; S.I. 2000/1047, art. 2(2)(d), Sch. Pt. IV

F3 Word in s. 16(3)(b) deleted (5.4.1993) by S.I. 1993/660, art. 2(5)(a).

F4 S. 16(3)(d) and preceding word inserted (5.4.1993) by S.I. 1993/660, art 2(5)(b).