In Scotland the underlying basis for divorce is that the marriage has broken down irretrievably.
This can be for one of four reasons, two based on fault and two based on periods of separation.
The fault-based grounds are unreasonable behaviour and adultery.
The no-fault grounds are one years separation if both parties agree or two years separation without the need for consent.
The date of separation, which is also known as the ‘Relevant Date’ is important in divorce cases for two reasons.
In the first place the date of separation is when the couple stop living together.
In relation to those grounds of divorce which are based on periods of separation the time starts running from the ‘Relevant Date’.
In the second place,when matrimonial property is being valued, the value is calculated at the ‘Relevant Date’.
Matrimonial Property is all the matrimonial assets that have been acquired during the course of the marriage from the date of the marriage to the date of separation.
The only exception to this is if a flat or a house was bought prior to the date of the marriage ‘for use as a Family Home’. If this is the case the house or flat is still treated as a matrimonial asset.
The value of each item of matrimonial property is calculated as at the Relevant Date which is the date of separation.
The house or flat which was purchased to be the home the family would live in is probably the most common example of matrimonial property.
The property is likely to have a financial value which will have to be shared between the parties
There are also practical issues to consider in relation to whether either party will continue residing in the property after separation or if the property should be sold.
The part of a Pension which relates to the period between the date of the marriage and the date of separation is matrimonial property.
Pensions are taken into consideration when the matrimonial assets are being divided. Pension sharing is one way to bring this about.
After separation one or other party may be entitled to weekly or monthly maintenance for themselves and/or the children.
If the parties cannot agree on a figure for the children the CMS ( Child Maintenance Service) can provide an assessment.
In some circumstances maintenance can als be paid by one spouse to the other.
Q; My wife and I have recently separated and she wants to make a claim against my Pension. I won’t receive my pension for another 10 years. Can she do this?
A; Yes she can make a claim at this stage. Pensions can be shared at any time and the share your wife receives will be paid into a pension fund of her own.
Q; I retired a year ago and I now wish to split from my husband. I am currently receiving a monthly pension payment. Can my husband take any action that will prevent me receiving the payment?
A;It is possible that your husband might be entitled to receive part of your pension. Pensions that are in payment ( ie the person who is receiving the pension has retired) can be shared. To what extent your pension would be shared depends on the circumstances of the case. If your pension was shared the monthly pension payment you receive would be reduced.
Q; My spouse is asking for more than half of our assets. Is that possible?
A; The law says that each party is entitled to a fair share of the matrimonial property. In many cases an equal share would be regarded as a fair share. There can, however, be special situations where this is not the case. You should take advice from an experienced Family Lawyer.
Q; Are all of our debts also taken into consideration when we are deciding how to split our assets?
A; Yes. All the matrimonial assets are taken into consideration, as are all the matrimonial debts. After that has been done you are left with the net matrimonial property which is to be shared between you and your spouse.
Q; I had quite a lot of savings before I got married. Are these taken into consideration when all the assets are being split?
A; Matrimonial property is defined as all the assets that have been acquired between the date of the marriage and the date of separation. If the savings are from before the marriage they do not come into the equation.
Q; I am worried that I will not have enough money to live on after I am divorced. Is there any way I can work this out?
A; An IFA will be able to help with this. If you can produce all your income and expenditure details cash flow planning can project what funds will be available in the future.