Divorce – Family Law Scotland
It is a prevalent misconception that divorcing couples are obligated to partition the property they have acquired during their marriage equally. They do not. You can locate the law in section 9 (1) (a) of the Family Law (Scotland) Act 1985. The property must be distributed “equitably” among them. However, what does this entail in practice?
We frequently experience situations in which it is inappropriate to distribute assets evenly after a marriage ends. The origin of the discoveries that were first utilised to obtain the asset can be significant; for instance, if inherited money was utilised, there can be a strong case to keep the new asset—or a portion of its value—out of the “pot” to be divided.
When one spouse quits their job or puts their career on hold to raise the couple’s children, they often use this as an excuse to ask for a deviation from the equal sharing of the spousal property so that their partner can pursue their own career goals. The law acknowledges that the spouse who resigned from their job contributed non-financially to the marriage by raising the children, but it also acknowledges that the spouse may have had financial setbacks, including lost income, stunted career growth, and diminished pension benefits. The law specifies that in certain situations, a deviation from the equal division of matrimonial property may be applicable, provided that it is deemed just and equitable to do so.
Additionally, during a marriage and after a divorce, spouses owe each other aliment or monthly maintenance. In the short to medium term, either spouse may turn to the other for support if they are unable to cover their monthly expenses. However, equal disposable income for each spouse is not required by law. It is acknowledged that spouses will have different earnings and expenses, thus any payments that must be paid will take into account resources, needs, and living standards rather than guaranteeing strict equality for both. Those who have given up their employment for the benefit of their spouse or the marriage’s children frequently need to make interim food payments.
If a civil partnership dissolves, similar provisions also take effect.
Cohabitation law in Scotland
The legislation has specifically allowed cohabitees to file claims against one another once a relationship ends in 2006. However, they are only able to do so under a very narrow range of conditions, which are if either:-
(a) In the best interests of their cohabitee, any children from the relationship, or a child who has been recognised as a member of the family, they have suffered a financial disadvantage; or
(b) Their contributions have given their cohabitee a financial advantage.
Although the law applies to cohabiting partners equally (and to same-sex couples as well), the most prevalent situation in the evolving case law is that of a woman quitting her job to raise her partner’s children while the other pursues professional advancement. Non-monetary contributions are taken into account, such as volunteering to help with a business, managing the household, or providing childcare. By making sure that neither party loses out on the relationship and that they split any profits produced by their cohabitee while they are together, the law aims to create equity between the parties. It is, however, a more general, broad-brush approach to reaching an equitable settlement rather than an exercise in totalling up the property they have gained during the partnership and splitting the value of it between them.
The law acknowledges that there is still work to be done in terms of gender equality, even if many women choose to work and are financially independent. This is especially true when taking into account the household arrangements of many couples. It is nevertheless true that a lot of women need financial assistance after a relationship ends. After a relationship ends, it is desirable to find a path ahead that enables both people to move on with their lives. Finding fair solutions rather than trying to impose equality frequently results in results that are satisfactory to all sides. For additional details, kindly contact us.