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What are we each entitled to in our divorce settlement?

What does the law say about how to split the house, how to share pensions and other assets, and how much maintenance is payable.

What steps can we take to reach a fair agreement?

The four basic steps to reaching an agreement on divorce finances are: disclosure, getting advice, negotiating and implementing a Consent Order.

What is a Consent Order and why do we need one?

A Consent Order is a legally binding document that finalises a divorcing couple's agreement on property, pensions and other assets.


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Scots law and financial settlements

  • wee man
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09 Jan 08 #10274 by wee man
Topic started by wee man
I was told by my solicitor that when providing financial disclosure you should provide evidence of money in bank accounts at the start of the marriage and money in the accounts at the date of separation. The differential is then used to get an idea of marital assets. My wife's solicitor has now asked me only for account information at the date of separation. Does anyone know why ? Surely this means (using easy figures as an example) if I had 1 million in the bank at the start of the marriage and now I have 1 thousand then I have had a 999 thousand loss throughout the marriage. Does this mean that my wife is entitled to 500 pounds ie half of what I own at the moment ?

Also in asking for a financial disclosure I have been given a time limit of 28 days. I have never had a disclosure from my wife so is it fair to hold back on my disclosure until she has agreed to give me a full financial disclosure ? Or would this be seen as playing games ?

And finally - I bought a small apartment and paid it in full before I got married. My wife did the same but never paid for it in full. She had a mortgage throughout the marriage that I helped pay. I believe under Scots law that my property is safe but do I have any claim on her property because it was mortgaged through the marriage ?

Thanks for any help.

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09 Jan 08 #10284 by Fiona
Reply from Fiona
The first step is to identify what his/her/joint assets were in existence at the date of separation. These usually include property, furniture and furnishings, a car, endowment policies, other forms of investment and pension rights. Any outstanding liabilities (mortgage, car finance, personal loans, credit card debts etc) have to be deducted to produce a total net value as at the date of separation.

Step two will be establishing which of those assets form part of the matrimonial property. This step involves looking at the individual assets and seeing the circumstances in which they were acquired, for example whether they were owned by either party before the marriage or were gifted or inherited.

Step three is valuing those assets. If they were owned before marriage you need to establish their value at the date of marriage and any increase in value during the marriage is included in the matrimonial 'pot.' For example, with an asset valued at £2k on the date of marriage and £20k on the date of separation £18k will go into the pot. Any asset owned before marriage used for the good of the family is usually included in the pot. This is especially true with the marital home or any asset used to purchase it.

s10 (4) Family Law (Scotland) Act 1985

.... “the matrimonial property” means all the property belonging to the parties or either of them at the relevant date which was acquired by them or him (otherwise than by way of gift or succession from a third party)—
(a)
before the marriage for use by them as a family home or as furniture or plenishings for such home; or
(b)
during the marriage but before the relevant date.

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10 Jan 08 #10381 by wee man
Reply from wee man
Thanks for the advice. But I'm still not sure about 1 point in my post. If I have bought my apartment outright before the marriage and it was never used as a matrimonial home is it true that it's not included as an asset ? I also have an endowment that was used against the property but I didn't cash it in yet. I presume that is classed as an asset ?

Also, my wife had an apartment but didn't pay for it outright. It also was never used as a marital home. Since she still has a mortgage that I helped pay for our 2 year marriage and an endowment, are they both classed as marital assets ?

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10 Jan 08 #10386 by Fiona
Reply from Fiona
All assets owned jointly or by either party on the date of separation are relevant and need to be disclosed. Then it's a question of establishing matrimonial and non-matrimonial assets.

The likely scenario with property owned before marriage is that it will be valued at the date of marriage and any increase in value will be considered a matrimonial asset. There are special circumstances that might effect that eg a short marriage.

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11 Jan 08 #10446 by wee man
Reply from wee man
Thanks again.

The marriage was just over 2 years so I guess it was short. My wife's lawyer has asked me to provide full financial disclosure (FFD) which I am currently doing to the best of my ability. I have a lot more finances and investments than my wife so it's taking longer than planned.

I was wondering if it would it be advisable or not for me to provide half the information now - which is the information I have at hand - and then the other half later when I get it, on the condition that my wife's lawyer confirms that my wife will also supply me with full financial disclosure ?

I presume I am within my rights to ask my wife's lawyer for FFD ? My only worry is that if I give up all my information now, my wife may ignore my request for FFD.

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13 Jan 08 #10609 by Fiona
Reply from Fiona
I don't think there's much point in posturing. You could save alot of time by listing all the his/her/joint assets you know on a spreadsheet with columns for the value at the date of marriage, the value at the date of separation and whether or not it's a matrimonial asset. Most married couples have a reasonable idea of each others assets.

Fill it in with all the information you can and mark the unknown values as 'estimates' or 'to be ascertained' and take the spreadsheet to a lawyer along with any documentary evidence you have. Your sol can then write giving your disclosure and asking your wife for her disclosure.

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