Commentary on Sections Effect of divorce, dissolution or annulment on special destination
137.Section 76 of the Act amends section 2 of the Succession (Scotland) Act 2016 (“the 2016 Act”).
138.Section 2 of the 2016 Act is in substance a re-enactment of both section 19 of the Family Law (Scotland) Act 2006 (“the 2006 Act”) and section 124A of the Civil Partnership Act 2004 (as inserted by paragraph 11 of schedule 1 of the 2006 Act). It is about the effect of a marriage or civil partnership ending through divorce, dissolution or annulment on a special destination. Special destinations, also sometimes known as survivorship destinations, are conditions that commonly appear in the title of property held by more than one person, usually spouses, which provide that on the death of one of the spouses their title automatically passes to the survivor. A special destination might also apply where property such as business premises is held in the name of a couple and a number of other people. Consequently even if one party executed a will leaving their interest to a third party, such a term would be ineffective and the property would still transfer to the survivor on death.
139.The effect of section 2(2) of the 2016 Act is to evacuate (or deprive of any effect) a special destination in favour of a spouse or civil partner where the marriage or civil partnership had been terminated prior to the deceased’s death unless the terms of the destination make clear that the destination is to have continued effect notwithstanding the ending of the relationship. Evacuation of the special destination is effected by treating the surviving co-proprietor as having already died before the deceased. The result is that there is deemed to be no survivor in whose favour the destination operates, so the deceased’s interest in the property falls instead into their own estate for succession purposes. Section 76 of the Act amends section 2(2) to make clear that this is only deemed to be the case for the purposes of succession to the deceased’s interest in the jointly held property.