Family Law – Divorce
In Scotland to obtain a Divorce from the Court an irretrievable breakdown of the marriage must be established on any of the four grounds:-
- Unreasonable behaviour
- Non-cohabitation for a period of one year with the consent of the other party
- Non-cohabitation for a period of two years, no consent required
In the vast majority of cases financial issues and matters relating to the children are resolved by way of a Separation Agreement. This means that divorce can proceed as somewhat of a paperwork formality.
Some cases cannot be agreed and action may proceed either in the Sheriff Court or the Court of Session in Edinburgh.
The guiding legal principles (set out in the Family Law (Scotland) Acts 1985 and 2006) which apply in the division of finances seek to achieve a ‘fair sharing’ of the matrimonial property and debts. There are some cases where a fair sharing does not necessarily mean a 50/50 sharing. In some circumstances the Court will divide property and debts in less/more than equal shares as justified by legal principles.
Matrimonial property is generally that which accrues during the marriage. This can include the family home, savings, investments and pension values. It does not matter in whose name the property is held. In Scotland the objective is to achieve a clean break financially with a fair sharing of property.
Gifts from third parties and inheritance will not normally be included as matrimonial property provided they maintain their original form.
It is important to take full advice in relation to what you may be entitled to on the breakdown of your marriage. Some property such as pensions can have high value and be complicated. Our team have the experience and expertise to guide you through the process. We are able to advise you as to what the Courts would consider to be a fair sharing in your particular circumstances.
FREQUENTLY ASKED QUESTIONS IN RELATION TO DIVORCE
- What are my financial rights on separation?
Your rights on separation will be considered under the Family Law (Scotland) Acts 1985 and 2006. Most parties can enter into discussions based on these principles through their solicitors, or in mediation, to reach an agreement on division of finances. The court can only grant such financial orders upon divorce.
- Am I entitled to half the furniture?
Normally parties should be able to agree a division of personal possessions such as furniture. If not, the court will be asked to determine such matters. Any property which has been purchased during the course of a marriage is considered matrimonial property and in principle, should be shared.
- Will I be able to retain the inheritance I paid into the mortgage?
In Scots law, any property “inherited” or “gifted” from a third party during the marriage does not fall within the definition of matrimonial property. If, however, you “convert” that property during the course of the marriage, e.g. use money inherited or gifted to buy other property then it is converted into matrimonial property. However, you still have a right to argue that in considering a fair division, consideration has to be given to the source of funds used to purchase/acquire the matrimonial property and any “special circumstances” which would justify one party receiving more than a 50% share. You should seek legal advice on this matter.
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