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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.


60-40 split in Scotland?

  • Jeanjeanie
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15 Apr 13 #389178 by Jeanjeanie
Topic started by Jeanjeanie
Hi, Currently trying to sort out finances with husband from which I am separated.

He wants the house to be be split 50-50, however I work part-time as I look after our children & was hoping for a 40-60 split. Is this possible in Scotland?

Any advice greatfully received

  • rubytuesday
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15 Apr 13 #389206 by rubytuesday
Reply from rubytuesday
Welcome to Wikivorce.

Usually, assets are shared on a fairly "even" basis, however, if the parties can agree to one receiving a greater share than the other, then that''s fine.

There are four steps which should be considered before making a decision about the financial arrangements. Please note that matrimonial property is that which is accrued between the date of marriage and the agreed date of separation (otherwise known as the relevant date).

1. Establishing the date of separation on which the married couple cease to cohabit as man and wife.

2. Identifying all the assets owned jointly or individually by a couple at the separation date including the house, furnishings, a car, pensions, savings and investments and any outstanding liabilities (mortgage, car finance, personal loans, credit card debts etc) in existence on the date of separation.
Property and other assets acquired after the agreed date of separation by either spouse is not matrimonial property.

3. Determining any non-matrimonial property by looking at the individual assets and seeing the circumstances in which they were acquired. Assets owned by either party before the marriage or those gifted or inherited are not matrimonial property. However, gifted or inherited property or assets must remain substantially in the same form; where gifted or inherited property is sold and other property is acquired, or where property is acquired using gifted or inherited money, the acquired property is matrimonial property. However the Court may take into account the source of the funds used to purchase the property by applying the second of the “special circumstances” and dividing such property unequally.
The exception to property owned prior to the marriage is that where the matrimonial home is purchased before the marriage with the intent for use as the matrimonial home; this would be included in the matrimonial assets, as would any furnishings and other items for the home purchased prior to the marriage.

4. Valuing matrimonial assets as at the date of separation, for example, by providing statements for savings, asking insurance companies for surrender valuations of endowments and pension providers for the Cash Equivalent Transfer Value. Endowment policies and pensions started before marriage are apportioned for the years of the marriage. It’s best to have agreement before having the house valued by a Chartered Surveyor. The liabilities are deducted from the assets to provide the net value of matrimonial property.

Principles to be applied when sharing the Marital Assets

The principles which the court shall apply in deciding what order for financial provision, if any, to make are that
the net value of the matrimonial property should be shared fairly between the parties to the marriage;

fair account should be taken of any economic advantage derived by either party from contributions by the other, and of any economic disadvantage suffered by either party in the interests of the other party or of the family;
any economic burden of caring, after divorce, for a child of the marriage under the age of 16 years should be shared fairly between the parties;
a party who has been dependent to a substantial degree on the financial support of the other party should be awarded such financial provision as is reasonable to enable him to adjust, over a period of not more than three years from the date of the decree of divorce, to the loss of that support on divorce;
a party who at the time of the divorce seems likely to suffer serious financial hardship as a result of the divorce should be awarded such financial provision as is reasonable to relieve him of hardship over a reasonable period.
(“economic advantage” means advantage gained whether before or during the marriage and includes gains in capital, in income and in earning capacity, and “economic disadvantage” shall be construed accordingly; “contributions” means contributions made whether before or during the marriage; and includes indirect and non-financial contributions and, in particular, any such contribution made by looking after the family home or caring for the family.)
It is reasonable (and advisable) to apply these principles when making an agreement between the two parties, whether or not they use solicitors to negotiate on their behalf.
Factors to be taken into Consideration
If a financial order is applied for on behalf of a child, or to redress the balance of burden of caring for a child, the Court shall give regard to:

any decree or arrangement for aliment for the child;
any expenditure or loss of earning capacity caused by the need to care for the child;
the need to provide suitable accommodation for the child;
the age and health of the child;
the educational, financial and other circumstances of the child;
the availability and cost of suitable child-care facilities or services;
the needs and resources of the parties; and
all the other circumstances of the case.
If a financial order is sought on the basis that one party who has been dependent to a substantial degree on the financial support of the other party, then the Court shall give regard to:

the age, health and earning capacity of the party who is claiming the financial provision;
the duration and extent of the dependence of that party prior to divorce;
any intention of that party to undertake a course of education or training;
the needs and resources of the parties; and
all the other circumstances of the case.
The above considerations shall also be regarded by the Court for all other financial order applications.
An order for financial provision must be justified by one or more principles in section 9 of the Family Law (Scotland) Act 1985 and that the order must be reasonable having regard to the resources of the parties.

  • Fiona
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15 Apr 13 #389209 by Fiona
Reply from Fiona
A 60:40 split is possible but in Scotland that tends to be the upper limit.

  • Jeanjeanie
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15 Apr 13 #389232 by Jeanjeanie
Reply from Jeanjeanie
Thank you for information x

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