Financial settlements in Scottish divorce cases: what you need to know

Divorce can be an emotional and life-altering experience, but it also involves legal and financial complexities. In Scotland, divorce settlements are governed by principles that aim to achieve fairness and equity between the parties.

From the division of assets and financial provisions to considerations involving children, here’s what you need to know.

Division of matrimonial property

One of the primary tasks in a divorce settlement is the division of matrimonial property. In Scotland, the principle of “fair sharing” is applied, which generally means that all matrimonial property should be divided equally between spouses unless there is a reason for a different split.

Matrimonial property defined

Matrimonial property includes all assets acquired by either or both spouses during the marriage and before the date of separation. This can include the family home, savings, pensions, cars, and even household contents. However, any property acquired before the marriage or after the date of separation is typically excluded, as are any gifts or inheritances received by one spouse.

Equal division and exceptions

While the starting point is an equal division, the court has discretion to depart from this if certain circumstances make an equal split unfair. For instance, if one spouse has made a more significant financial contribution to the marriage, or if there is a need to ensure that one spouse can continue caring for children, the court may adjust the division accordingly. Another example is where one spouse brought significant assets into the marriage that were not used for family purposes; those assets might be excluded from the settlement.

Financial provision on divorce

Beyond the division of property, financial provision on divorce can include several forms of financial support. The goal of financial provision is to ensure that both parties can achieve a fair and reasonable standard of living post-divorce.

The types of financial provision that can be awarded include capital sum – a lump sum payment from one spouse to another, the transfer of property, pension sharing and a periodical allowance.

Child-related financial considerations

When children are involved, financial settlements also address the financial needs of the children. Child maintenance is typically calculated based on a statutory formula, which considers the paying parent’s income and the number of children. The Child Maintenance Service (CMS) typically administers this, although private agreements between parents are also possible.

In addition to child maintenance, the divorce settlement may include provisions for how child-related expenses, such as education or healthcare costs, will be shared between the parents.

Factors the court considers

When making decisions about financial provision and the division of assets, the court considers several factors, including the duration of the marriage, whether one spouse has been economically disadvantaged by the marriage, such as giving up career opportunities, and the financial needs and resources of both parties.

The welfare of any children involved is a primary concern, and financial settlements made will prioritise ensuring their needs are met.

Divorce settlements in Scotland are designed to achieve fairness and balance, considering the unique circumstances of each marriage. The process involves a detailed assessment of matrimonial property, financial needs, and the welfare of any children involved. While the law provides a framework for these settlements, the outcome of each case can vary depending on the specific facts and circumstances. If you are going through a divorce, seeking legal advice is crucial to understanding your rights and ensuring a fair settlement.