When couples separate or divorce in Scotland, the court has powers to ensure that neither party unfairly reduces their assets to avoid paying aliment (financial support) or to avoid financially providing for their ex. Section 18 of the Family Law (Scotland) Act 1985 deals with this, and it gives important protection to both spouses and civil partners.
When Can an Application Be Made?
A person can apply to the court under Section 18 if they have made one of the following claims:
- An action for aliment (financial support during or after marriage/civil partnership).
- A claim for financial provision (such as capital sum, property transfer, or periodical allowance on divorce).
- An application to vary or recall an existing decree or financial order.
The application must be made within one year of the claim being decided.
What Type of Transactions Can Be Challenged?
The court can look at any transfer or transaction of property made by the other person for a period of 5 years before the claim was lodged, if:
- The transfer reduces assets available for financial settlement.
- It appears designed to defeat or reduce the rightful financial claim.
Examples include:
- Gifting property to relatives before divorce.
- Selling assets at undervalue.
- Moving money into a third-party account.
What Orders Can the Court Make?
If the court finds that a transfer was designed to reduce assets unfairly, it can:
- Set aside the transfer.
- Vary the terms of the transaction.
- Interdict (prohibit) the person from making similar transfers in future.
- Add any ancillary orders needed to make the decision effective.
What About Third Parties?
The law protects innocent third parties.
- If someone bought the property in good faith and for value (i.e. they paid a fair price), their rights will not be affected.
- Similarly, anyone who later acquires the property from a good faith purchaser will also be protected.
This ensures that genuine commercial transactions are safe, while still preventing deliberate attempts to defeat a financial claim.
Why Is Section 18 Important?
Section 18 of the Family Law (Scotland) Act 1985 ensures fairness in separation and divorce by:
- Preventing one spouse or partner from hiding or moving assets.
- Ensuring both parties have a fair financial settlement.
- Balancing protection for innocent third parties with justice for separating couples.
Ready to discuss your case?
Email XK Family Law Solicitors in Aberdeen at:
info@xksolicitors.co.uk
Our website articles are not legal advice. We accept no responsibility for use of this information.
For advice on your specific circumstances, contact XK Family Law Solicitors Aberdeen directly.