Divorce (Scotland) Act 1976

5Orders for financial provision

(1)In an action for divorce (whether brought before or after the commencement of this Act), either party to the marriage may, at any time prior to decree being granted, apply to the court for any one or more of the following orders—

(a)an order for the payment to him or for his benefit by the other party to the marriage of a periodical allowance;

(b)an order for the payment to him or for his benefit by the other party to the marriage of a capital sum;

(c)an order varying the terms of any settlement made in contemplation of or during the marriage so far as taking effect on or after the termination of the marriage:

Provided that any reference in this subsection to payment by the other party to the marriage shall include a reference to payment out of any estate belonging to that party or held for his benefit.

(2)Where an application under the foregoing subsection has been made in an action, the court, on granting decree in that action, shall make with respect to the application such order, if any, as it thinks fit, having regard to the respective means of the parties to the marriage and to all the circumstances of the case, including any settlement or other arrangements made for financial provision for any child of the marriage.

(3)Where an application for an order for the payment of a periodical allowance under subsection (1)(a) of this section has been withdrawn or refused, or where no such application has been made, either party to the marriage may apply to the court for such an order after the date of the granting of decree of divorce if since that date there has been a change in the circumstances of either of the parties to the marriage; and the court shall make with respect to that application such order, if any, as it thinks fit, having regard to the factors mentioned in subsection (2) of this section.

(4)Any order made under this section relating to the payment of a periodical allowance may, on an application by or on behalf of either party to the marriage (or his executor) on a change of circumstances, be varied or recalled by a subsequent order.

(5)Any order made under this section relating to payment of a periodical allowance—

(a)shall, on the death of the person by whom the periodical allowance is payable, continue to operate against that person's estate, but without prejudice to the making of an order under the last foregoing subsection ;

(b)shall cease to have effect on the remarriage or death of the person to whom or for whose benefit the periodical allowance is payable, except in relation to any arrears due under it on the date of such remarriage or death.

(6)Provision shall be made by act of sederunt to impose upon the pursuer in an action for divorce to which section 1(2)(d) or 1(2)(e) of this Act relates a duty to inform the defender of his right to apply for—

(a)financial provision under this Act,

(b)an order providing for the custody, maintenance and education of any child of the marriage under section 9 of the [1861 c. 86.] Conjugal Rights (Scotland) Amendment Act 1861,

in such form and manner as the act of sederunt may require, and, for the purposes of this subsection, where the pursuer alleges that the address of the defender is unknown to him, he shall satisfy the court that all reasonable steps have been taken to ascertain it.

(7)Any reference in this section to a settlement shall be construed as including a settlement by way of a policy of assurance to which section 2 of the [1880 c. 26.] Married Women's Policies of Assurance (Scotland) Act 1880 relates.