Section 16 of the Family Law (Scotland) Act 1985 explains how the Scottish courts can set aside or vary agreements between separating couples about financial matters – even after divorce or dissolution of a civil partnership – in certain circumstances.
This law exists to protect fairness and prevent unjust agreements from locking people into unreasonable arrangements.
What Is a Financial Provision Agreement?
A financial provision agreement is a written contract between spouses or civil partners that sets out what will happen to money, property, and other assets after divorce or dissolution. These agreements can be in the form of a pre-nuptial agreement, minute of agreement, post-nuptial agreement etc.
It may include:
- Periodical allowance (regular maintenance payments to an ex-spouse/partner).
- Property transfers.
- Capital payments.
- Pension sharing arrangements.
When Can the Court Change or Cancel an Agreement?
The court may set aside or vary an agreement in two main cases:
Where the agreement itself allows it
If the agreement clearly says that the court can later change or cancel a term – for example, a clause saying “this periodical allowance can be reviewed by the court” – then the court has that power.
Where the agreement was unfair at the time it was signed
If the court decides the agreement was not “fair and reasonable” when it was made, it can set it aside or change it.
⚠ This is judged based on the situation when the agreement was entered into, not later changes.
When Can You Apply to Change an Agreement?
The timing depends on the type of clause being challenged:
- For periodical allowance clauses (regular maintenance payments) that are changeable under the agreement:
Application can be made any time after the divorce or dissolution is granted. - For unfair agreements without pension sharing:
Apply at the time of divorce or within a time limit set by the court. - For agreements involving pension sharing or pension compensation sharing:
- To change/cancel pension terms → Must be done at the time of divorce.
- To change/cancel other terms → At divorce or within the court’s specified time.
Special Pension Rule
If a pension scheme later moves into the Pension Protection Fund (for example, if the employer becomes insolvent), that does not remove the court’s power to set aside or vary the original agreement.
Other Situations Where Changes Can Be Made
The court can also change or cancel periodical allowance terms if after the agreement:
- The paying party becomes bankrupt or is subject to a similar debt remedy.
- Their estate is managed under a trust deed for creditors.
- Child maintenance becomes payable for a child who also benefits from the periodical allowance.
No Waiving the Right to Apply
Any clause in the agreement trying to remove your right to ask the court to change or cancel it is legally void – it has no effect.
Key Takeaways
- Agreements can be changed by the court if they’re unfair or if circumstances (like bankruptcy or child maintenance) arise later.
- Pension-related terms have stricter time limits for challenging them.
- You cannot sign away your right to ask for a court review.
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.