Commentary on Sections Testamentary documents and special destinations Section 2 – Effect of divorce, dissolution or annulment on a special destination
9.This section makes similar provision to section 1 but in relation to what is known as a special destination of property. 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.
10.This section provides that a special destination of property in favour of a former spouse or former civil partner is revoked by the legal end to the relationship, provided the death of the testator occurs after the legal termination of the marriage or civil partnership. This is given effect to in subsection (2) which treats the former spouse or former civil partner as having died before the testator where the criteria in subsection (1) are met. Section 2(3), like section 1(3) explained above, enables provision to be made which disapplies the new rule.
11.As recommended in the Commission’s Report No. 124, 1990(1) and Commission’s Report No. 219, 2009(2), this section re-enacts section 19 of the Family Law (Scotland) Act 2006 and section 124A of the Civil Partnership Act 2004 (which are repealed by the schedule to the Act) and extends their effect to moveable as well as heritable property.
12.Subsection (4) protects the title of a third party who acquires property in good faith and for value from the former surviving spouse unaware of the divorce, dissolution or annulment.
13.This section applies only where the divorce, dissolution or annulment is obtained from a court of civil jurisdiction in the United Kingdom, the Channel Islands or the Isle of Man or is otherwise recognised in Scotland (subsection (6)).