Today, the new Bankruptcy (Scotland) Act 2016 ("2016
Act") and the Bankruptcy (Applications and Decisions)
(Scotland) Regulations 2016 ("2016 Regs") come into
These new rules effectively consolidate the law on personal
insolvency in Scotland.
30 years' worth of amendments to the Bankruptcy (Scotland)
Act 1985 ("1985 Act") had made the law on personal
insolvency very cumbersome. The old legislation became a challenge
to use, even for those who used it on a regular basis.
The 2016 Act repeals the 1985 Act in full and looks to modernise
bankruptcy law in Scotland. By adopting a sensible structure for
the 2016 Act, practitioners will no longer need to navigate their
way through unwieldy legislation.
With some exceptions, the 2016 Act does not rewrite the law on
personal insolvency but rather consolidates and simplifies existing
provisions. Where the 1985 Act was originally only 78 sections
long, the 2016 Act has 238 sections which progress through the
personal insolvency process in a more structured way from the
initial applications and petitions, and the tests for
sequestration, to the discharge of the debtor and trustee.
The 2016 Act and 2016 Regs clarify where the decision making
power lies, transferring further powers from the court to the
Accountant in Bankruptcy (AiB).
The AiB now has the power to recall a sequestration and has the
ability to grant bankruptcy restriction orders for periods of up to
The 2016 Regs set out the procedure for making general and
specific applications to the AiB and how the AiB should make
The new rules apply to sequestrations where the petition was
presented, the application made or trust deed executed, from
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