You may not be Kim or Kanye, but what are you entitled to in a divorce?
Divorce and separation have hit the headlines again this week with the rumours that Kim Kardashian and Kanye West have decided to call time on their six-year marriage, with the media reporting that they have terminated marriage counselling. It is likely that this will be dealt with by high-profile attorneys instructed by both parties in the USA, and it will be interesting to follow their break up and the fallout from same. It has to be hoped that it will be resolved as amicably as possible given the parties’ children.
Clearly this is not the USA and the majority of people that are going through a divorce will not play this out in the spotlight. What most people will not know, however, is what they would be entitled to if they were to separate/divorce in Scotland.
What is the legal position in Scotland?
In Scotland, it is the legal position that each party to the marriage is entitled to a fair share of the net value of matrimonial property. The net value of matrimonial property is the assets accumulated during the marriage and which are in existence at the date of separation less any debts owed at the date irrespective of whose name the assets/debts are held. This excludes assets acquired by way of inheritance or gift from a third party. The general rule (and is the case in most situations) is that a fair share will result in an equal share, however there can be special circumstances where one party could ask for more than an equal share of the net value of matrimonial property. This may include the following:
- If money used to acquire the asset did not come from the income and efforts of the parties during the course of the marriage, for example if it came from inheritance or gifted money or damages in personal injury claim.
- If one spouse has deliberately destroyed or dissipated assets for example by gambling or by spending considerable amounts of money on the consumption of illegal drugs.
- The nature and use of property, this may relate to the matrimonial home if it is the family home for the parties’ children or if the home has been adapted in some way for use by one of the spouses for business use or otherwise.
This list is not exhaustive and there can be other special circumstances that might allow an argument to be made for an unequal division in favour of one or indeed both parties. The outcome of any settlement should be fair and reasonable having regard to both parties’ resources.
It is important to stress that no two cases are the same and there can be various different reasons why an unequal division could be justified.
It is essential to instruct a specialist family solicitor about your options. They will be able to extract the relevant information from you to allow advice to be tendered as to whether or not you may be able to seek an unequal division in your favour.
Our family law team is made up of experienced family law solicitors around the country. Many of our team are trained in various methods of dispute resolution, including mediation and collaborative practice, and are Accredited by the Law Society of Scotland as specialists in their field.
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