Family Law AssociationThe Law Society of Scotland
Glasgow 0141 375 1222

When is fair sharing, not fair?

Cameron-Shaw---Divorce-Blog-28-08-19

In Scotland, the financial implications and consequences of divorce are set out in the Family Law (Scotland) Act 1985. This Act sets out how you can divide matrimonial property on divorce and includes certain  principles and  special circumstances on how to divide matrimonial property.  

Matrimonial property is generally defined as all the property acquired by the couple during the course of the marriage before their separation date.  This includes heritable(bricks and mortar) and moveable property and pensions, savings, investments and any other assets and debts. Assets held by either party before marriage are usually not included.

However, there are some exceptions to what is matrimonial property.  The most common exception that clients ask advice on, are gifts and indeed inheritances, which are generally excluded from the matrimonial property.  

The first principle of divorce and the division of matrimonial property as set out in the Act is that there should be a fair sharing of assets between the parties.   This generally means that all assets and debts should be split equally between the parties when they divorce, i.e. a 50/50 split.    

However, there are certain principles and special circumstances set out in the Act that allow for a party to put forward arguments so that there is a deviation from this equal sharing principle, thus allowing one party to receive a lesser or a greater amount than the other.

 The Act contains a number of principles for an unequal sharing of the matrimonial property.  One of the principles is that there should be a fair account taken of economic advantage derived by either party from contributions by the other and of economic disadvantage suffered by either party in the interests of the other party or indeed the family.  Essentially what this means is that if there have been greater contributions by one party than the other then this should be taken  into account  when dividing the matrimonial property i.e. during the course of the marriage, someone contributed more than the other so they should be getting a greater share of the matrimonial pot.

There are also arguments for an unequal share of the matrimonial pot when the question of the care of children arises, i.e. who will have the economic burden for care of the children and whether or not there are certain issues in respect of the children and any additional care that they may require.

There are also contained in the Act, details of special circumstances that again can, if argued properly, allow for an unequal sharing of the matrimonial pot. These special circumstances include the following;

  • Whether there has already been an agreement between the parties, (i.e. they have sorted matters out themselves on an issue or a number of issues).
  • The Source of any funds and where the money came from, i.e. a pre-existing property and the money used from that to purchase a matrimonial asset will be included and will allow for an unequal sharing of the property.
  • There are also special circumstances that include allowing for an unequal split where one party, during the course of the marriage spent more money than the other, on, for instance, a gambling addiction, this would also be included and factored in to any settlement figures, giving a larger share to the party that did not spend the money.

Whilst all these arguments and principles can have an effect, they do not necessarily give a clear cut answer as to what the division of the matrimonial assets and debts should be, however they do influence and do give scope for your Solicitor to argue certain points to make sure that you are putting forward all your possible arguments so that you would receive a greater share of the matrimonial pot than the other party.

If you are separating or have separated, and would like further information and advice regarding the issue of aliment or periodical allowance why not come along to our free divorce clinic on 29 August 2019? Our friendly team of family solicitors will be on hand to provide advice – call 0141 375 1222 to reserve your free 20 minute consultation.

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