Financial provision Flashcards
S8 Family Law Scotland Act
Shows the preconditions of what a spouse is able to apply for eg: capital sum etc
S9(1)(a)
Fair sharing of matrimonial property has 3 steps
- Identify the home
- Value the home
- Divide the home
Maclean v Maclean
91a The Croft that was bought for employment was not held to be matrimonial property
Watt v watt
91a She didn’t work to look after the children and the matrimonial property had value from the fishing business because the assets had changed and as such it counted as matrimonial property
Gifts between spouses
Count as matrimonial property if between each other
Latter v latter
Authority for that if gifted or inherited money loses its status when it turns into something else
R v R
Paintings that were bought for house with inheritance money seen to be matrimonial property but husband put down all the money so the wife only got a 1/3 in matrimonial property
Valuation
This has to be done at the date they ceased to cohabit or the date which the divorce proceedings take place
Banks v Banks
Disagreement about when they ceased to cohabited however agreed that it was the date he changed his bank card as this was seen as a ‘significant gesture’
Wallis v Wallis
Man gained price and it went up in price and woman got lump sum however this is not allowed Anymore under Scots law because it is unfair- needs to be on specific date
Petrie v Petrie
The husband was injured before the marriage so did not count as matrimonial property
Skarpass v Skarpass
Damages- between the date of marriage and separation counter as MP
Pensions and life policies
‘Referable to the period of marriage and CP’
S9(1)(b)
Fair sharing of economic advantage/disadvantage
The balancing exercise under 91b
1st- how advs /disadvantaged have sustained by parties been balanced by advs /disadvants sustained by the other party
2nd- has any resulting imbalance been corrected by sharing out matrimonial property or otherwise
Cuniff v Cuniff
91b - she had given up work shortly before the marriage to look after children- court gave outright transfer of more than 50%
Harris v Harris
91b Wife payed off chunk of mortgage with inheritance money and was given more than 50%
9(1)(c)
Fair sharing of economic burden of child care - largely outdated
S9(1)(d)
Adjustment to loss of financial support - periodical allowances if capital sum or pto insufficient, can only be claimed for 3 years
Bell v Bell and Louden v Louden
Periodical allowances awarded in addition to generous capital sum payments
S9(1)(e)
Serious financial hardship- no time limit, generally used for very old or very ill
Conduct of spouse - S11(7)
This should be regarded when it had ‘Adversley effected the financial resources which are relevant to decision of court’
Agreements between themselves - Kibble v Kibble
Parties can make agreements between themselves, before, after or during the marriage
The presumption of death S Act
S1,2,3 - 7 years grants a declarator of death
