SCOTTISH FAMILY LAW

There are two major issues to consider from a financial perspective. 

How will the matrimonial property be shared?

Should either party be paying maintenance for the children or to the other spouse?

Before deciding how the matrimonial property should be shared the matrimonial assets require to be identified and valued.

Matrimonial property is defined as all the property that has been acquired by the parties between the date of the marriage and the date of separation (the one exception to this is the family home and contents which can still regarded as matrimonial property if they were  purchased before the date of the marriage)

The value of these assets are calculated at the date of separation ( which is sometimes called the’ relevant date’)

The most common matrimonial asset is probably the family home. There are also pensions, savings, businesses, policies,household contents and any other property that has a value.

It is also necessary to establish if there is any matrimonial debt. Such debt must have been incurred during the course of the marriage.

If you deduct the amount of the debt from the value of the assets the value of the net matrimonial property is left.

The law says that the net value of the matrimonial property should be shared equally between the parties.

Although fair sharing is the norm it is recognised that there are a number of special circumstances which can mean that the sharing might be unequal. For example the parties may have  agreed that the sharing should be unequal or one of the parties may have received an inheritance or gift from a third party or one of the parties may have destroyed or dissipated certain assets.

The situation can be made more complicated if there is a family home. Has the property to be sold?  How should the proceeds of sale be split? Should the property be transferred to one or other party? If so how does that affect the sharing of the rest of the assets?

Every situation is different and expert advice as required to help you negotiate the best solution for yourself and your family.

If there are children, or if one party earns more than the other there is the question as to whether maintenance should be paid. The CMS (Child Maintenance Service) have a formula for calculating the amount of maintenance that should be paid to children. 

In certain circumstances maintenance can also be paid by one spouse to the other for a period of time to allow the party who is not working, or who is earning less, to adjust to their new circumstances.

Financial issues can be resolved by negotiation, collaboration or by raising court proceedings.

In most cases, parties will negotiate, with the assistance of their family solicitor, and will enter into a Minute of Agreement ( sometimes referred to as a Separation Agreement)