Under Scottish law, the division of marital assets in the event of a divorce should be fairly split. This is often 50:50 but may sway in either direction if an equal split is not deemed fair under individual circumstances. Rarely do couples sign up to a prenuptial agreement (prenup), an agreement that sets out the rules for the division of money and property in the event of future separation, before launching into marriage. Although this may seem like tempting fate, it is actually one of the best ways to reduce the possibility of an unfair divorce settlement or judgement.

Without a clear and defined prenup, anything owned together or separately during the relationship is up for sharing, but assets that one or the other owned separately, or were inherited or gifted prior to the separation, are exempt from this.

For example, if you owned a flat in your sole name before the marriage, and then purchased a family home with your new spouse, the original flat would be excluded from the account in a divorce settlement. However, if the flat was sold after marriage, with the proceeds helping to pay for the new home and the title put into joint names, the deposit contribution from the original flat is, at least partly, included in the mix for sharing out upon separation, whether you agree with this or not.

Divorce with legal assistance

Given the nature of separation, it isn’t uncommon for both parties to struggle to reach an agreement on the fair division of assets. Property, money, savings, house contents, pensions, and investments are all in the mix to divide and share out. It is almost essential for the spouses to get a solicitor (different solicitors, of course, one cannot act for both) to advise them on what the law provides, and to negotiate to achieve a fair and workable deal. This should always be the first step of legal assistance.

These settlements always involve compromise, as giving a little ground informally may save tens of thousands in court costs for a contested action. Of course, not every divorcing party will be able to reach a fair and equitable decision in this way. For those cases that do go to court because the parties cannot agree, most get settled before the full extent and cost of a court case is reached, and therefore very few have to be adjudicated by the Sheriff.

For disputes regarding asset division that end up in court, the Sheriff can consider if there is anything about the source of funds claimed by either party that deems it appropriate to recognise them as non-matrimonial. However, often after a long marriage, funds have been mixed in too deeply and it’s unlikely that you could claim a full reimbursement.

The Sheriff will be bound by the rules of family law, but this doesn’t mean that both parties will be satisfied with the results of the case. Divorce is a highly emotional procedure that is often accompanied by negative feelings between spouses, so it isn’t uncommon for one spouse to feel hard done by. However, if you believe that the outcome is a truly unfair divorce settlement, you can appeal it.

Appealing an unfair divorce

Divorce settlements can only be appealed under certain circumstances, and therefore, such appeals are rare. You will need to prove that the Sheriff was wrong in the way that the final decision was reached and that the outcome is genuinely unfair.

In an example of a divorcing couple in the Scottish Courts, a husband was ordered to transfer his share of the matrimonial home to his ex-wife, as well as to pay her a lump sum of £45,000 to address financial inequalities, and regular monthly payments of £750 for six months. However, he was able to appeal this ruling as, during the case, his wife submitted supplementary affidavits that painted her ex-husband in a poor light which led to an unequal division of matrimonial property.

The additional information was not shared with the husband at the time of the proceedings and the Sheriff could not prove that he was not influenced by the material. This led to a new decree of divorce, granted by the Sheriff Appeal Court with the husband required to pay a reduced one-off sum of £41,500, regular payments of £750 each month for a period of two years and importantly, the marital home was to be sold and the proceeds divided equally - a lesser order than the original decision.

Whether you are considering divorce, are in the process of divorcing, or if you feel you have fallen victim to an unfair divorce settlement, contact a solicitor today to support you through the next steps.

By all means, fall in love, but don’t lose your common sense or financial prudence.