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Giving 100% - When Splitting Up Isn’t Quite 50/50

It was reported today that in an 'exceptional' ruling, a divorcee in England was ordered to pay his ex-wife 100% of his UK assets following their separation. So what makes this case so unusual, and would the same apply in the Scottish Courts? Family Law partner Jackie McRae explores the issue.

The Case

The Court of Appeal in England has made an order in a divorce case that a husband pay over all his UK assets, worth over half a million pounds, to his wife. The couple, who had two children and lived in Birmingham, separated in 2011. The husband subsequently left the UK and set up home with a new partner in Bahrain with whom he had another child. 

He had paid no maintenance to his ex-wife for the children since the separation.  A judge in the family court made an award to the value of 100% of his assets in the UK. 

Usually the court would take into account the needs of both parties in determining a fair division of a couple’s property.  In this case the Court of Appeal upheld the judge’s original decision because there seemed to be no realistic prospect that the husband would make any contribution to supporting his children in the UK voluntarily. Legal commentators noted that the outcome in this case was ‘an exceptional outcome, but it is a fair one where the husband was found to have effectively ‘abdicated responsibility’ for her [his wife] and his children’.

How Would This Work in Scotland?

The general rule in Scottish divorce is that each party should have a fair share of the value of property they have built up together during a marriage. A fair share would usually be 50/50. 

However the court can exercise its discretion to give one party more of the matrimonial property if simply dividing it equally doesn’t bring about a fair outcome for each of them. In particular, in cases involving children the court can take into account the impact on one party of taking the primary responsibility for looking after the children after divorce. 

The economic impact of having to limit working hours, or pay for child care, may justify giving the main carer more of the matrimonial property to compensate for this financial disadvantage. In many cases the other party will pay a reasonable amount of child maintenance and that will offset the cost to the other party. But if no maintenance is being paid, the court is likely to look at that carefully, and adjust the division of the property so that the financial burden of bringing up the children is shouldered by both parents proportionately.

It is very rare for the court to order that one spouse takes all of the matrimonial assets.  Nevertheless there have been cases in Scotland in which the court has ordered that one party should receive more than half of the matrimonial property - indeed sometimes much more. Such a ruling would be made where it was necessary to ensure a stable and secure home for children, especially if the children have additional needs such as an illness or disability, or the non resident parent has defaulted on maintenance as in this example in England.

Our Advice

As always with such cases, when things end up in the courts you cannot predict the outcome. We would always advise our clients to try and come to a formal agreement without going to court in order to find a resolution that works for everyone, however evidently in this instance this was not possible. Every case can be different, so if you are considering a divorce it is worth discussing with an advisor from an early stage what you can expect and to explore your options fully.

For more information on divorce, separation agreements or other aspects of Family Law, contact Jackie via email or on 0131 624 6969.

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