This forum is a fantastic wealth of information. Thanks to all the contributors.
I am assisting my Aunt in relation to finding out some background information on her divorce that occurred in in 2004.
It appears her ex-husband failed to include business assets that were purchased during the course of their marriage in their Separation Agreement. The separation agreement was also drawn up by her ex-husbands solicitor. She was not advised to get her own legal advice.
She has full custody of the children. As per the Separation Agreement she was only given 50% of the funds from the sale of the family home when it was sold.
While in hindsight, it was a poor decision to agree to the one-sided terms, she was in quite an emotional state at the time.
After doing some research I believe the agreement could be set aside due to misrepresentation.
My uncle transferred the business ownership to his new wife 5 years ago. If the agreement was to be set aside, would my Aunt have any recourse?
I am just wondering if there is any point advising her to go down the legal path, when at the end of the day my uncle has now transferred ownership over to his new wife (he now essentially has no assets).
When an agreement is set aside in scotland, would it be voided from the start or just from the date the judge sets the agreement aside?
Her legal fees could potentially wipe out any financial gain - you said that she received half of the declared assets - usually marital assets are divided on a fairly even basis between the parties. Why has it taken so long for her to consider looking into setting aside the SA?
The leading case is Gillon v Gillon (No 3) 1995 SLT 678. Here Lord Weir set out the following principles: “(1) It is necessary to examine the agreement from the point of view of both fairness and reasonableness. (2) Such examination must relate to all the relevant circumstances leading up to and prevailing at the time of the execution of the agreement, including amongst other things the nature and quality of any legal advice given to either party. (3) Evidence that some unfair advantage was taken by one party of the other by reason of circumstances prevailing at the time of negotiations may have a cogent bearing on the determination of the issue. (4) The court should not be unduly ready to overturn agreements validly entered into. (5) The fact that it transpires that an agreement has led to an unequal and possibly a very unequal division of assets does not by itself necessarily give rise to any inference of unfairness and unreasonableness.”
I don''t know why it''s taken so long. I think she just trusted what he was doing was right for her and the kids. There was also a verbal understanding my uncle would look after his children in his will, however now this will not be the case with transfer of ownership of all assets to his new wife.
So my question really is ''IF the agreement was set aside in scotland, would it be voided from the start (allowing the shares to be clawed back) or just from the date the judge sets the agreement aside (meaning she would only have a claim on my uncle - who no-longer has any assets in his name)?