35 Recalling of order for payment of capital sum on divorce.S
(1)This section applies where—
(a)a court has made an order, whether before or after the coming into force of this section, under section 5 of the M1Divorce (Scotland) Act 1976 or section 8(2) of the M2Family Law (Scotland) Act 1985, for the payment by a debtor of a capital sum or [F1a court has, under the said section 8(2), made an order for the transfer of property by him or made a pension sharing order];
(b)on the date of the making of the order the debtor was absolutely insolvent or was rendered so by implementation of the order; and
(c)within 5 years after the making of the order—
(i)the debtor’s estate has been sequestrated other than after his death; or
(ii)he has granted a trust deed which has (whether or not within the 5 years) become a protected trust deed; or
(iii)he has died and, within 12 months after his death, his estate has been sequestrated; or
(iv)he has died and, within the said 12 months, a judicial factor has been appointed under section 11A of the Judicial Factors (Scotland) Act 1889 to administer his estate.
(2)Where this section applies, the court, on an application brought by the F2. . . trustee, the trustee acting under the trust deed or the judicial factor, may make an order for recall of the order made under the said section 5 or 8(2) and for the repayment to the applicant of the whole or part of any sum already paid, or as the case may be for the return to the applicant of all or part of any property already transferred, under that order, or, where such property has been sold, for payment to the applicant of all or part of the proceeds of sale:
Provided that before making an order under this subsection the court shall have regard to all the circumstances including, without prejudice to the generality of this proviso, the financial, and other, circumstances (in so far as made known to the court) of the person against whom the order would be made.
(3)Where an application is brought under this section in a case where the debtor’s estate has been sequestrated, the F2. . . trustee shall insert a copy of the decree of recall in the sederunt book.
Textual Amendments
F1Words in s. 35(1)(a) substituted (26.3.2002 for certain purposes and otherwise 6.4.2002) by 1999 c. 30, ss. 84, 89(1), Sch. 12 Pt. II para. 68; S.I. 2002/818, art. 3(b)
F2Words in s. 35 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
Modifications etc. (not altering text)
C1S. 35 applied (with modifications) (4.4.2006) by The Cross-Border Insolvency Regulations 2006 (S.I. 2006/1030), reg. 2(1), Sch. 1 Article 23 paras. 1-3 (subject to paras. 6, 9)
Marginal Citations