Family Law: Financial Provision on Divorce

Separation and divorce are difficult times for all involved, with emotions running high.  If there are children involved then usually both parties' primary concern is ensuring the arrangements for their welfare are secured as quickly and smoothly as possible, so that they can maintain a good relationship with both parents.

It is, however, important that both parties are aware of the law with regards to financial provision on divorce, and seek experienced legal advice in that regard.

The law relating to financial provision on divorce is governed by the Family Law (Scotland) Act 1985, as amended.  Section 9(1)(a) of that Act provides that the net value of the 'matrimonial property' should be shared fairly between the parties to a marriage.  Fairly usually means equally, but there are circumstances where an unequal division of matrimonial property may be appropriate.  Such examples may include where one party has derived an economic advantage from contributions by the other, say by one party spending a large amount of their free time renovating and decorating a property inherited by the other party.  Another example could be where one party has derived an economic disadvantage in the interests of the family, say by one parent giving up work as a junior doctor, to care for the children of the family, and losing out on the opportunity to build a career to consultant level, including the chance to accrue pension provision, and impacting on their earning capacity after a separation.

But what is 'matrimonial property'?  Again, it is necessary to look to the 1985 Act.  It is defined as the net value, after the deduction of any debts incurred during the marriage, of all property in either joint or individual names acquired (otherwise than by way of gift or inheritance) during the marriage but prior to the date of separation. The first stage in resolving financial matters arising from a divorce is to identify the date of separation, and then the matrimonial assets and debts, and obtain appropriate values for these.

Common issues which may arise in the context of negotiating a financial settlement on divorce include identifying the agreed date of separation, dealing with claims for ongoing financial support made by one spouse to another, negotiating how any financial settlement is to be paid having regard to the resources of each party, and dealing with the appropriate division of matrimonial property where one party brought pre-marital property into the marriage.

The Drummond Miller Family Law Team are extremely experienced in dealing with all matters arising from financial provision on divorce, and deal with these in a professional but empathetic manner.  We seek to resolve matters by way of negotiation where possible, are able to recommend alternative means of dispute resolution where appropriate, but are experienced and confident litigators in cases where it is impossible to resolve matters without recourse to the courts.

If you have need advice about any aspect of separation and divorce, including financial matters and issues regarding contact and residence of children, or any other Family Law matter please get in touch with our experienced Family Law Solicitors in Edinburgh, Dalkeith, Musselburgh and Bathgate.