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The Family Law (Scotland) Act 2006 tried to address what had become known as the Wallis problem. This had arisen from the case Wallis v Wallis when the House of Lords held that any change in the value of that property since the relevant date should be ignored. The result was that if property increased in value a spouse received a ‘windfall’ with a transfer of property. Courts became reluctant to order transfers as such a ‘windfall’ was seen to be unfair. The remedy was to insert (3A) in s10 Family Law (Scotland) Act 1985 so property is valued at a date agreed between the parties, failing which the date of the order. This has introduced a whole new set of problems, including which law applies when there has been a change of law between the dates of separation and bringing an action.
There are very few recent reported cases on financial provision with most cases in Scotland settling through negotiation. To my knowledge there is no reported decision to identify the principle although there is one unreported case, Burnside v Burnside (May 2007), when an attempt was made to apply s16 of the FL(S)A 2006 to the value of the pension. The pension had increased in value between separation and divorce. The sheriff rejected the argument and took the value of the pension as its CETV at separation.