Financial Provision Upon Divorce

The matrimonial property is all the property acquired by either party during the course of the marriage down to the date of their separation. Specifically excluded from that definition is property owned before the marriage, or property acquired by way of gift or inheritance.If property changes in nature during the marriage (for example by being sold and used to purchase something else) then it is likely to be changed from non-matrimonial property into matrimonial property.

The law directs that in relation to the matrimonial property that this should be fairly shared between the parties and in many cases this will mean that there should be an equal sharing of the net value of the matrimonial property.

The law does allow the Courts to take account of special circumstances which may mean that equal sharing of the matrimonial property would not necessarily be fair and leading to one party receiving a greater percentage of the net value than the other. Special circumstance arguments are quite numerous and complex and professional advice is advisable before agreeing the basis for sharing of the matrimonial property.

Scots Law is not especially generous with regard to the matter of spousal maintenance. Spouses do have a duty to “aliment” i.e. maintain each other until divorce. The amount that may be payable will depend upon the needs and resources of the parties, their earning capacity and all the circumstances of the case. A divorcing spouse or partner may, theoretically, be entitled to maintenance for a period of up to three years post divorce. There have not been many cases when a divorce spouse or partner has obtained maintenance for as long as that and in most cases there will either be no ongoing award of maintenance beyond the date of divorce or if there is it is likely to be for a relatively limited period. Everything depends however on the particular circumstances of the parties.

There is however an exception to this general rule for the divorcing spouse or partner who cannot work because of age or infirmity and in such cases it is possible to seek long term maintenance (for example for life) however this would be a relatively unusual Order for a Court to make probably because elderly couples separating are few and far between.

Under the Child Support 1991 Act child maintenance is now dealt with by the Child Support Agency rather than the Court. Typically however if one is negotiating a Separation Agreement you would expect to build in provisions as regards the ongoing maintenance of the children of the marriage as part of the overall settlement terms.

It is however still possible to seek top up maintenance, for example, in relation to school fees or where a child has particularly expensive care needs.

Funding Options For You

We can offer you a variety of funding options, from payment by instalments to settlement from the proceeds of the sale of the family home where relevant. In some circumstances you may even be eligible for legal aid.

Once we have discussed your family matter with you during our free initial discussion, we will outline the available funding options for you.

Free, No Obligation Assistance

Simply call us for a free, no obligation discussion today on 0131 222 8000 or complete the enquiry form on the right of this page and we will be delighted to help you.