Family Law (Scotland) Act 1985

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16 Agreements on financial provision.S

(1)Where the parties to a marriage [F1or the partners in a civil partnership] have entered into an agreement as to financial provision to be made on divorce [F2or on dissolution of the civil partnership], 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 [F3or of dissolution of the civil partnership]; and

[F4(b)under subsection (1)(b) above, if the agreement [F5contains neither a term relating to pension sharing nor a term relating to pension compensation sharing], on granting decree of divorce [F3or of dissolution of the civil partnership] or within such time as the court may specify on granting decree of divorce [F3or of dissolution of the civil partnership]; or

(c)under subsection (1)(b) above, if the agreement contains a term relating to pension sharing [F6or pension compensation sharing]—

(i)where the order sets aside the agreement or sets aside or varies the term relating to pension sharing [F7or (as the case may be) the term relating to pension compensation sharing], on granting decree of divorce [F3or of dissolution of the civil partnership]; and

(ii)where the order sets aside or varies any other term of the agreement, on granting decree of divorce [F3or of dissolution of the civil partnership]or within such time thereafter as the court may specify on granting decree of divorce [F3or of dissolution of the civil partnership].]

[F8(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.]

[F9(2AA)For the purpose of subsection (2), a term relating to pension compensation sharing is a term corresponding to provision which may be made in a pension compensation sharing order and satisfying the requirements set out in section 109(g) of the Pensions Act 2008.]

[F10(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.]

(3)Without prejudice to subsections (1) and (2) above, where the parties to a marriage [F11or the partners in a civil partnership] have entered into an agreement as to financial provision to be made on divorce [F12or on dissolution of the civil partnership] and—

(a)the estate of the [F13person] 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 [F13person] has not been discharged;

(b)an analogous remedy within the meaning of section [F1417(7) of the Bankruptcy (Scotland) Act 2016] has, since that date, come into force and remains in force in respect of that [F13person's] estate; F15...

(c)that [F13person's] estate is being administered by a trustee acting under a voluntary trust deed granted since that date by the [F13person] for the benefit of his creditors generally or is subject to an analogous arrangement, [F16; or

(d)by virtue of the making of a [F17maintenance calculation][F17maintenance calculation], child support maintenance 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 [F18or of dissolution of the civil partnership], 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.

Textual Amendments

F1Words in s. 16(1) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 22(2)(a); S.S.I. 2005/604, arts. 2(c), 4

F2Words in s. 16(1) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(c), Sch. 28 para. 22(2)(b); S.S.I. 2005/604, arts. 2(c), 4

F3Words in s. 16(2) inserted (4.5.2006) by Family Law (Scotland) Act 2006 (asp 2), s. 46(2), Sch. 2 para. 5(3); S.S.I. 2006/212, art. 2

F4S. 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

F5Words in s. 16(2)(b) substituted (6.4.2011) by Pensions Act 2008 (c. 30), s. 149(1), Sch. 7 para. 8(a); S.I. 2011/664, art. 2(3), Sch. Pt. 2

F6Words in s. 16(2)(c) inserted (6.4.2011) by Pensions Act 2008 (c. 30), s. 149(1), Sch. 7 para. 8(b); S.I. 2011/664, art. 2(3), Sch. Pt. 2

F7Words in s. 16(2)(c)(i) inserted (6.4.2011) by Pensions Act 2008 (c. 30), s. 149(1), Sch. 7 para. 8(c); S.I. 2011/664, art. 2(3), Sch. Pt. 2

F8S. 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

F9S. 16(2AA) inserted (6.4.2011) by Pensions Act 2008 (c. 30), s. 149(1), Sch. 7 para. 8(d); S.I. 2011/664, art. 2(3), Sch. Pt. 2