Our guide covers legal principles, factors impacting division, and what qualifies as matrimonial property. Get expert advice from our family law solicitors at d and h law to navigate this emotional process and ensure a fair settlement.
Divorce and separation can be a difficult and emotional time for all parties involved. One of the most significant considerations in the event of a separation is the division of assets. This process can be stressful, especially if there are disagreements or misunderstandings about how assets should be divided. However, by understanding the legal principles involved, and with the right guidance, it is possible to ensure that assets are divided fairly and efficiently. Below, we’ll explore how assets can be divided during a divorce in Scotland and what needs to be considered throughout the process.
Division Of Assets Under Scottish Law
Firstly, it's important to understand that in Scotland, the law recognises that 'matrimonial property' should be divided fairly. This generally means that both parties have an equal claim on any assets acquired during the marriage or civil partnership. However, certain factors could contribute to an unequal share of property being awarded to one party or the other. Before taking these factors into account, it is important to understand exactly what assets are going to be split between the separating couple.
In Scotland, matrimonial property is defined as any property, money, and assets acquired by either spouse during the marriage, regardless of who purchased or owns the property. This includes:
- The family home and any other properties bought during the marriage.
- Any savings, investments, or pensions built up during the marriage.
- Household items and personal possessions.
- Any debts incurred during the marriage.
Assets acquired before the marriage, or after separation, are generally not considered matrimonial property. However, there are exceptions. For example, if the family home or its furniture was acquired before the marriage to be used by the couple after marriage then that will be treated as matrimonial property and subject to division upon divorce. A qualified solicitor will be able to advise you on your entitlement throughout the divorce process.
What Happens If Children Are Involved?
In Scotland, the division of matrimonial property during a divorce is governed by the Family Law (Scotland) Act 2006. The court will consider various factors, including the duration of the marriage, the contributions of each spouse to the acquisition and maintenance of the property, and the needs of each spouse and any children. The goal is to achieve a fair and equitable distribution of assets between spouses.
If one party assumes responsibility for a child or children following a separation, the financial burden may result in an unequal division of assets. This can include expenses related to childcare and the need for one parent to find new accommodation for themselves and their child(ren).
The court will consider the amount of maintenance paid by the parent who is not the primary caregiver. If the children are young and the non-custodial parent is not providing sufficient child maintenance, an argument for unequal asset division may be successful in favour of the primary caregiver.
When Can Assets Be Divided Unequally During a Divorce?
In divorce cases, assets are generally divided equally, but special circumstances may justify an unequal division. These circumstances must exist at the time the couple separates. Several factors could warrant an unequal division of assets, such as the source of funds used to acquire property, destruction of assets due to one spouse's actions, the nature and use of property, and funds received from a damages claim.
For instance, if one spouse received funds for personal injury, such as pain and suffering or loss of future earnings, it may not be appropriate for them to share equally with the other spouse. However, non-financial conduct, like infidelity, is not a valid reason to depart from equal sharing.
Seeking advice from a qualified solicitor is the best course of action, as each couple's circumstances are unique, and there may be several reasons why an unequal division of assets could be justified.
Do You Need Support?
Divorce and separation can be a challenging and emotional time for all parties involved. At d and h, we understand the difficulties that come with dividing assets during this process. Our experienced family law solicitors can provide you with the right guidance and legal advice to ensure that assets are divided fairly and efficiently.
If you need help with your divorce or separation, don't hesitate to contact us today. We will help you navigate through this difficult time and work hard to ensure that your assets are divided in a way that is fair and equitable.