Aberdeen Solicitors, Duthie Ward Solicitors, Aberdeen lawyers, divorce law, Aberdeen Scotland

Introduction

The law says that when a married couple get divorced the matrimonial property should be shared fairly between them. When a divorce action is raised, either party can ask the court for orders to achieve this fair sharing. This could be payment of a sum of money known as a capital sum, a transfer of property such as the matrimonial home, or a pension share

What is the matrimonial property?
This comprises all assets owned by a couple, whether individually or jointly, at the date of separation, which have been acquired during the marriage other than by way of gift or succession from a third party. So anything which you owned before the marriage or which you acquired after the date of separation is not included. However, a house or household furnishings acquired by one or both of you before the marriage may, in certain circumstances, be included.

How are these assets shared?
The sharing exercise involves five steps:-

Establishing the date of separation
The date of separation is the date on which husband and wife start to live apart from each other. See Separation

Establishing what assets were in existence at that time
These usually include a house, furniture and furnishings, a car, endowment policies, other forms of investment and pension rights. Any outstanding liabilities (mortgage, car finance, personal loans, credit card debts etc) have to be deducted to produce a total net value as at the date of separation.

Establishing which of those assets form part of the matrimonial property
This step involves looking at the individual assets and seeing the circumstances in which they were acquired, for example whether they were
owned by either party before the marriage or were gifted or inherited.

Establishing the value of those assets as at the date of separation
Most assets can be valued fairly easily, for example a house by a Chartered Surveyor, an endowment policy by asking the insurance company for a surrender value, etc.

Special rules apply to endowment policies and pensions. If the policy or pension started before the marriage, the separation date value will have to be apportioned.

Sharing those assets “fairly”
The law says that these should be shared equally unless there are “special circumstances“. This might be where an asset was acquired using inherited money.

What if there are assets which are not matrimonial property?
These don't have to be shared, but they are resources which can be taken into account, as any award made by the court must be “reasonable having regard to the resources of the parties.”

As well as sharing the matrimonial property, the court can also order payment of a capital sum, a transfer of property or a pension share to reflect the unequal burden of childcare which can arise on divorce, or to compensate one of the couple for economic disadvantage sustained by him / her in the interests of the other or the family.

The legal information contained in this site is not comprehensive, nor should it be treated as a substitute for specific legal advice on any individual situation.