Family Law: Divorce and Separation: Special Circumstances

It is the most popular time of year for engagements and when newly wed couples tie the knot, you will often hear the expression "What's mine is yours". This holds a certain amount of truth in Scot's Law, however, there is a common misconception that in all separations the marital assets and debts are simply totalled up and split down the middle.

Financial provision on divorce is governed by The Family Law (Scotland) Act 1985, as amended. One of the underlying principles of the law relating to financial provision in Scotland is that of fairness. Fairness usually means an equal split of all matrimonial assets and debts which have been accrued between the date of marriage and the date of separation. If wishing to begin the process of separation, it is important to first identify the date of separation, and to identify and then value the matrimonial assets and debts.

However, fairness does not always mean an equal split. There are 'special circumstances', which may allow for an uneven division of assets.

5 principles govern the fair sharing of matrimonial property, which are set out in the 1985 Act, s.9(1). These principles examine the fair sharing of the value of matrimonial property, compensation for any economic disadvantages suffered, the economic burden of childcare, adjusting to get back into the work place and serious financial hardship suffered by one party.

Section 10 of the 1985 Act provides that the court can depart from "equal sharing" if this departure is justified by "special circumstances". The law is not black and white in regard to what exactly constitutes a 'special circumstance' however; Section 10(6) provides an illustrative list of possible "special circumstances":

(a)    The terms of any agreement between the parties on the ownership or division of any of the matrimonial property;

(b)    The source of the funds or assets used to acquire any of the matrimonial property where those funds or assets were not derived from the income or efforts of the parties during the marriage;

(c)     Any destruction, dissipation or alienation of property by either party;

(d)    The nature of the matrimonial property, the use made of it (including use for business purposes or as a matrimonial home) and the extent to which it is reasonable to expect it to be realised or divided or used as security;

(e)    The actual or prospective liability for any expenses of valuation or transfer of property in connection with the divorce.

The circumstances mentioned will not necessarily guarantee a departure from equal sharing but rather it will be a matter for negotiation, or in litigation for consideration by the Sheriff or Judge determining the case. The Sheriff or Judge must be satisfied that equal sharing would not be fair in the circumstances of the case and ultimately it will be a matter for agreement or exercise of the court's discretion.

At Drummond Miller we have an experienced Family Law Team who will be able to advise and guide you appropriately through the stages of separation and divorce. If you need advice about any aspect of separation and divorce or any other Family Law matter, please get in touch with our experienced Family Law Solicitors in Edinburgh, Dalkeith, Musselburgh and Bathgate.