Unfortunately not all divorces run smoothly, with many couples unable to agree upon a final settlement. For many, the particular sticking point will relate to financial provision, without which one party may face significant economic hardship.
Reaching an Agreement Outside of Court.
When a marriage breaks down, the separating couple will need to reach an agreement upon a number of things, including the division of assets, child care and matrimonial property. If a mutually acceptable arrangement can be made, it is prudent to formally set out the decisions in a separation agreement. This can then be applied to divorce proceedings should the couple wish to officially end their marriage.
However, if there is not a separation agreement in place, these issues will have to be resolved before a divorce can take place. There are times when both parties are happy to participate in a 'kitchen-table agreement', whereby decisions are made amicably without the need for external intervention. Alternatively, it may be helpful to employ the services of a professional mediator, or to seek help from solicitors offering a collaborative law approach.
Court Orders For Financial Provision.
Nevertheless, there are occasions in which a divorcing couple simply cannot agree upon financial provision. If so, it is possible to take action through the courts, which have the power to issue orders for financial provision. When doing so, the court will consider the following factors:-
* The value of matrimonial property, which must be equally shared;
* The expense of caring for children of the marriage, which must be equally shared;
* Whether one party is financially dependent upon the other;
* Whether one party will suffer financial hardship because of the divorce;
* Contributions made by one party which has led to their economic advantage or disadvantage - eg. if one party has contributed by giving up work to look after the children, this will have caused economic disadvantage.
What Can The Court Decide?
Court orders for financial provision can relate to the following issues:-
1. Matrimonial Property.
The law states that matrimonial property must be shared equally. This covers all property acquired during the marriage, as well as property used as a matrimonial home (which may be have been purchased before the marriage). However, the courts are able to consider circumstances in which the equal division of matrimonial property would not be fair. In such an event, an order may be issued stating one party is to receive a greater percentage of the matrimonial property's net value.
2. Spousal Maintenance.
Those within a marriage have a duty to provide their spouse with financial maintenance - known as 'aliment'. In certain situations, the court may decide this should continue after the marriage. The sum will be entirely dependent upon the circumstances, with consideration given to each party's needs, resources and finances.
Even so, Scots Law prefers divorcing couples to have a clean break from each other. Therefore payment may be made in a lump sum, or may be paid in monthly instalments for a restricted period - usually no more than three years. The only exception to this rule is where one party cannot work due to age or infirmity.
3. Child Maintenance.
Nowadays, the courts do not deal with child maintenance, with responsibility instead being given to the Child Support Agency (CSA). However, if you feel the sum you receive is not sufficient, it is possible to seek an order for the 'top up' of maintenance payments.
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