You can only look for financial provision if you’re part of a couple who are married on in a civil partnership and wish to divorce. It is important to note that different rules apply to couples who are cohabiting.
Let’s start with the basics. The law says that all assets and joint debts should be divided equally. It also says that personal debts in the name of one party only stay with that party. However, sometimes we can take into account the assets belonging to just one of the parties.
There are also two important dates to consider. The first important date is the commencement date of the marriage or civil partnership. The second important date is the “relevant date”. This is usually the date the parties separated.
When we deal with financial provision, we take into account assets and joint debts accumulated between the commencement date and the relevant date..
We don’t normally consider an inheritance or gift to one of the parties to be matrimonial property. However, if the party receiving the inheritance of gift buys something that’s used in the marriage or civil partnership it may then become matrimonial property. The law generally excludes anything owned by the parties before the marriage or civil partnership started. However, these might be included if certain circumstances apply. Similarly, if a party acquires any assets or debts after the relevant date, these are normally excluded.
Can I achieve a bigger share of the assets?
Yes, it’s possible. However, we can only properly answer this question after we’ve examined the financial position in detail. The law starts off with the view that all assets and joint debts be divided equally and you have to bear that in mind. Sometimes, we can agree an uneven split of assets and debts or this might be imposed by the courts.
There are two key things involved in the calculations. The first is to show that you’ve been disadvantaged. The second is that you have to show that your spouse or partner has been advantaged. You need to establish both of these if you wish an unequal split of the assets.
Can I continue to live in the family home?
We will tell you “it depends”. First of all, we’ll conduct a review of your financial position. After that, we’ll conduct a review of your spouse or partner’s financial position. Then we will make some recommendations. We might recommend that you are entitled to remain in the family home. Sometimes, we can arrange for ownership of the house to be transferred to you. On other occasions, we might be able to agree that live in it for a certain period of time, especially if you’re the main carer for any children. There’s no hard and fast rule as everyone’s circumstances are different.
Do I get a regular allowance?
Normally, the answer to this is “no”. The Scottish courts take the view that aliment should be “capitalised”. That means if the court think you’re due a payment for maintenance, it’s rolled up and paid as a lump sum. The courts in Scotland calculate around 3 years worth of aliment which is then capitalised. The English Courts take a different view so it’s important to decide which jurisdiction you use to decide this question.
Calculating financial provision on divorce is complex and involves full disclosure. You must make full disclosure, supported by relevant valuations. Your spouse or partner must do the same. It’s only after that, that we can calculate how the assets should be divided. Finally, we’ll advise you of the figures and how we calculated them. We will then put a proposal to your spouse or partner’s solicitor and seek their agreement. If all else fails, we will recommend that you raise court proceedings.
Need help to calculate your financial provision?
Don’t simply assume everything will be divided equally. Every case is different. Get in touch and we’ll check it out.