Financial Provision in Divorce
At the Glasgow Law Practice, we know taking the decision to get divorced is never easy. There are financial considerations, often children to be taken care of, and property and assets to be divided. At the Glasgow Law Practice, we have advised the people of Glasgow on divorce and matrimonial law for over 30 years. Our family law team have considerable experience dealing with all types of cases, from maintenance and divorce to cohabitation rights and civil partnerships.
Separation Agreements Lawyers, Glasgow
Upon the breakdown of a marriage or civil partnership, it is extremely important for both parties to take the time to consider the financial implications following on from separation. This is frequently an area of concern for both parties, and it is strongly advisable to seek independent advice from an experienced Family Law Solicitor.
The most effective way to deal with separation of finances is arguably entering into a Separation Agreement. This is effectively a written contract between the parties and can contain provisions for bank accounts, the family home, pensions, and any other assets or debts. As these are voluntary agreements they are more likely to be amicable and to leave room for negotiation. After the Separation Agreement has been fully negotiated and a compromise has been reached, it will be written up by your solicitor, signed by both parties and then registered in the Books of Council and Session. It will then become binding and enforceable in the same manner as a court order if necessary.
If a Separation Agreement cannot be agreed, then the Court will rule on the division of the parties' assets. This is frequently a more contentious process as the final division of assets is out of the parties' hands. The law governing financial provision on divorce is the Family Law (Scotland) Act 1985 as amended by the Family Law (Scotland) Act 2006.
Irrespective of the course of action decided upon; the matrimonial property must be identified. Both parties must carry out the following four steps before any decision can be made about financial arrangements:-
- Establish the date of separation: when the parties ceased to cohabit as husband and wife or civil partners.
- Identify all the assets owned, whether individually or jointly, by the individuals at the date of separation. Any property or assets acquired after the date of separation will not constitute matrimonial property.
- Discount all of the above assets which are not matrimonial property from those that are. E.g., assets owned by either individual before the marriage/civil partnership (with the exception of property bought as a family home and its furnishings) or assets gifted to or inherited by either individual cannot be considered to be matrimonial property. However, if money gifted or inherited is used to purchase a new property during the marriage/civil partnership, that property will be classified as matrimonial property.
- Both parties then must value these assets at the date of separation.
The Division of Matrimonial Property
The division of property in Scotland is guided by the five principles contained in Section 9 of the Family Law (Scotland) Act 1985, namely:
- The net value of the matrimonial property should be shared fairly;
- Fair account should be taken of economic advantages or disadvantages suffered by either party in the interests of the other spouse or the family as a whole. For example, a spouse who left a well-paying job to help the other spouse with their business and wasn't paid for this labour would be entitled to an additional award over and above the fair sharing. These claims are not limited to matrimonial property but can be made against all property owned by the paying spouse.
- The economic burden of caring for children under the age of 16 should be shared equally between the parties. The court can apply this principle to grant one spouse more than half of the matrimonial property so they can continue to live in the family home with the children. As above, these claims are not limited to matrimonial property but can be made against all property owned by the paying spouse.
- A spouse who has been financially dependent on their spouse should be awarded financial provision to allow them to adjust to the loss of that support. This can be in the form of maintenance payments for a maximum period of three years or in the form of a capital sum.
- Financial provision should be made to prevent a spouse suffering serious financial hardship. This can be in the form of maintenance payments with no three-year limit or the form of a capital sum.
The court must have mind to at least one of these provisions in making a decision on the division of matrimonial property, and it is useful to consider these when negotiating separation agreements as well.
Court Ruling vs. Separation Agreement
The decision about whether to try and negotiate a separation agreement or go to court and rely on a judge finding in their favour is one that both parties should give serious consideration to. It will obviously not always be possible to reach an outcome that benefits both parties, but we would strongly advise you to weigh up the pros and cons. If you would like to discuss your options, contact our expert family law team today for a free consultation.
Contact our Divorce Law Solicitors in Glasgow Today
The dissolution of a marriage or civil partnership is never an easy decision and uncertainty about the inevitable financial considerations can cause considerable stress. At the Glasgow Law Practice, our expert solicitors have been advising the people of Glasgow on family and matrimonial law for three decades. Our family law team have considerable experience in dealing with all kinds of cases. Our friendly and professional divorce law solicitors will handle your situation in complete confidence. Contact us on 0141 413 9059 or fill in an enquiry form and we will contact you without delay. You can also call into one of our offices.