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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.


Things taken into consideration ...

  • SilverFir
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27 Nov 11 #299775 by SilverFir
Topic started by SilverFir
This post is a bit of a fishing exercise, so apologies if it doesn't make sense. I've just been reading the stickies in the Ancillary Relief forum (for England) and was wondering whether Scotland had some of the same details when it came to courts working out divisions ...

When the Court takes into account current and future earnings, do they also take into account decisions made since separating? For example, I was out of work for the first 18 months but have since got a good job; STBX was working in a good job but voluntarily quit that to become a mature student. In my eyes, that drop in income is his choice, and not something that should factor.

I now have to pay half-share of a rental house, with all associated bills. He has to pay mortgage and bills on the former marital home in which he lived for 18months following separation (but he now lives rent-free with relatives). Because he's vacated the house, he expects me to pay half of its bills; but my home expenses are actually greater than his. Will the court take that into account?

Any guidance of how the court views assets & costs following separation but before actual financial division would be gratefully received. No children involved.

  • Fiona
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27 Nov 11 #299799 by Fiona
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It's really a question of negotiating and compromise.

In Scotland most people come to an agreement sooner or later and there are relatively few cases where the courts work out divisions. Part of that is due to the clarity of the Family Law (Scotland) Act 1973 with the principles applied, the sharing of assets and factors taken into account set out in s9,10 &11 respectively. When a case goes to court it is often settled by solicitors haggling in corridors.

Property is shared "fairly," usually 50:50, and rarely do settlements diverge much away from that. The split takes into account any economic disadvantage someone might suffer because of the relationship so when someone stayed at home to look after children and was dependant on their spouse they might be able to claim a bit more.

However, regardless of current and future incomes and the aim of the law is to encourage people to be financially independent and readjust.

  • WeeKate
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27 Nov 11 #299800 by WeeKate
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and is deviation from 50:50 that rare? I find this risible considering the amount I have paid towards joint debt and the needs of the children of my marriage! I find myself wishing I lived in England and had never worked!

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27 Nov 11 #299801 by SilverFir
Reply from SilverFir
Thanks again for the reply Fiona (I do appreciate the time & effort you put in on this forum!)

I understand the idea of a 50:50 split of assets and liabilities at the point of separation, and I think both me & STBX accept that.

Our issue is going to be around costs incurred since separation prior to any final settlement agreement. He's incurred costs on the FMH, I've incurred costs by not living in the FMH.

eta. WeeKate seems to be in a similar situation but on the other side of this equation :laugh: She's incurred the costs of the FMH but stands to lose out by a 50:50 split at separation being awarded. The law can't have it both ways, so either I will benefit (by not having to contribute to the FMH since moving out) or she will benefit (from her X having to contribute to her costs).

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27 Nov 11 #299817 by Fiona
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Unfortunately Scottish law is a bit fuzzy about what happens about between separation and settlement.

It used to be that the property was valued at the date of separation and one party would have a windfall if the value went up. This was known as the Wallis Problem after the Wallis case. In 2006 the law changed so that if the parties couldn't agree the courts had the power to set the relevant date. The uncertainty this has created it's own problems. As I said it usually is a matter of negotiation and compromise or solicitors haggling in court corridors. There are few recorded judicial decisions to refer to.

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27 Nov 11 #299818 by WeeKate
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I wondered, that explains a lot. Everything in my Record is referred to as the "relevant date" rather than the date of separation. It is a pity there is so little documented evidence of court judgments in Scotland.

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27 Nov 11 #299822 by Fiona
Reply from Fiona
Case law is used differently in Scotland and the language is archaic so judgments can be difficult to read. Opinions are documented and available to download at the Scottish Courts and Bailli websites.

The reason there aren't many recorded decisions is because most court cases are agreed through negotiation during proceedings rather than the court imposing a ruling so there aren't that many decided issues of fact or law or merits.

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