Capital Sums Payment on Divorce
Under the Family Law (Scotland) Act 1985, the court has the power to order a capital sum to be paid by a party to the marriage, either:
- on granting decree of divorce/dissolution or
- within such period as the court on granting the decree may specify.
The court may stipulate that the order shall come into effect at a specified future date. Typically this would be used where the matrimonial home is the most substantial asset and requires to be sold in order to raise the necessary finance to pay the capital sum.
Alternatively, the court may order that the capital sum be paid by instalments where, for example, a spouse has few capital assets but has a substantial income.
The court has discretion, under s12(4) to vary the order where an application is made by either party if there is a material change in circumstances.
The court also has the power to order a party to transfer his ownership of property to the other under s12. This often involves one party transferring his one-half pro indiviso share of the matrimonial house to the other party.
It is competent for both a capital sum order and a property transfer order to be made in the same action.