Financial Provisions on Divorce

Question 1

What did Lord Hope state in the case of Little v Little 1990?

Answer 1

That despite the detail list of provisions of the 1985 Act the matter is one of discretion, aimed at achieving a fair and practicable result in accordance with common sense.

Question 2

When will a Court make an order in relation to financial provision?

Answer 2

s. 8(2) of the Family Law (S) Act 1985

- Rule set out

Question 3

Under s.9(1)(a) of the Family Law (S) Act 1985 there should be fair sharing of matrimonial/partnership property.
Where can the definition of what is (a) matrimonial property and (b) partnership property be found?

Answer 3

(a) FL(S)A 1985 s.10(4)(a)&(b) sets out what is matrimonial property
(b) FL(S)A 1985 s.10(4A)(a)&(b) sets out what partership property is.

Question 4

What is the relevant date?

Answer 4

The cut of time for ascertaining what is or is not matrimonial property at the end of a marriage or partnership.

Question 5

Where can details of when the relevant date apply be found?

Answer 5

Family Law (S) Act 1985 s.10(3)(a) and (b)

Question 6

What happened in Banks v Banks 2005 in respect of the relevant date?

Answer 6

• Issue arose in divorce proceedings as to the relevant date
• Pursuer argued date to be Jan. 1996 as they had almost no direct contact
• Defender argued July 2001 when the pursuer last visited the matrimonial home
  HELD
• The relevant date was May 1998
• Judge made clear that in 1996 despite being abroad, his possessions were still in the matrimonial home and correspondence was still sent there to him
• still living together as man and wife
• 2001 not relevant date as although he visited and ate meal they were not living together as man and wife
• May 1998 relevant date as this was when Pursuer ceased to stay overnight in the matrimonial home and same month changed bank accounts
  -Significant change in the relationship

Question 7

What happened in the case of Buczynska v Buczynski 1989 in respect of the relevant date

Answer 7

• Parties argued opposing views on when the relevant date was
• Mainly regarding the fact the matrimonial property increased in price substantially between their two argued dates
  HELD
• Judge found in favour of date argued by the pursuer (wife) of May 1987 as this was when the parties ceased to share bedroom, ceased to cook for the husband and solicitors sent letter to wife to vacate house
• Husbands argument that the relevant date was in 1980 when his wife admitted to an affair was not accepted

Question 8

What happened in Samurai v Al-Samurai 2015

Answer 8

• Wife reclaimed against determination of Lord Ordinary that relevant date was 19 June 2013
• This was the date upon which her solicitor made the husband aware she considered their marriage to be over
• Wife alleged that the relevant date was 13 May 2013 as after a phonecall with solicitors she had no prospect of reconciliation
• The two cohabited with one another until summons served in September 2013
  HELD - reclamation dismissed
• Lord Ordinary was correct in stating they were still cohabiting as husband and wife in May
• that position changed upon the letter being delivered to the husband

Question 9

What happened in Skarpass v. Skarpass 1993?

Answer 9

EXCEPTION TO RELEVANT DATE CUT OFF
- Wife brought an action of divorce seeking a capital sum
- Capital sum represented a proportion of substantial damages awarded to husband after relevant date
- Event which led to damage proceedings occurred between the marriage and the relevant date
HELD
- W was entitled to a portion of the damage even though at the relevant date an amount of damages had not been calculated
- Still satisfied matrimonial property

Question 10

Does property acquired before the marriage fall in to matrimonial property?

Answer 10

NO

- unless house is used as the matrimonial home which was acquired by one party before the marriage.

Question 11

EXAMPLE
- John buys an Aston Martin prior to his marriage with Anne
- It costs him £47,000
What will Anne be entitled to?

Answer 11

Anne entitled to nothing

- The car was purchased prior to the marriage and therefore does not constitute matrimonial property.

Question 12

EXAMPLE
- John and Anne buy an Aston Martin for £47,000 prior to their marriage
- They are joint owners
How much would each party be entitled to on divorce?
Would one party get to keep the car?

Answer 12

• The car would not be included in matrimonial property as it was purchased prior to the marriage
  and s.9(1)(a) cannot apply
• They would remain co-owners of the car on divorce.

Question 13

What happened in Mitchell v Mitchell 1995?

Answer 13

• Parties married, divorced, remarried and divorced again
• husband retained matrimonial home after first divorce
• Question arose as to whether it could be regarded matrimonial property in the second
• Husband argued it was purchased in contemplation of the first marriage not second therefore should not be regarded as matrimonial property
  HELD
• Parties had acquired the property for use as a family home
• s.10(4) did not require that the property had to be acquired for use as family home in particular marriage
• Or that it had to have been used continuously by parties

Question 14

Are gifts or succession from a third party included in matrimonial property?

Answer 14

NO

- Excluded as per s.10(4)

Question 15

Do gifts from the parties in the marriage to one another fall into matrimonial property?

Answer 15

YES

Question 16

When may gifts or succession from a third party fall in to matrimonial property?

Answer 16

Where the gift or succession changes form or substance during the relationship

Question 17

What did s.16 of the FL(S) A 2006 change in relation to valuation?

Answer 17

Matrimonial Property is to be valued on the “appropriate valuation date”
- rather than the old law at the relevant date

Question 18

What must the Court sometimes rely on in cases of valuation?

Answer 18

Court must listen to the opinion of competing experts and objectively favour one to the other as per Parker v Parker 2014

Question 19

What happened in the case of Wallis v Wallis 1993?

Answer 19

• Spouses co-owned property worth £44,000 at relevant date and £68,000 at date of divorce
• Husband was was granted wife’s interest in the house and compensation of £34,000 was granted to the wife
• Husband appealed against wife’s payment
• Appeal granted, the value of matrimonial property had to be established at relevant date, wife only entitled to £22,000

Question 20

What happened in the aftermath of Wallis?

Answer 20

• Reform of the 1985 Act where an order for transfer of property was sought.
• s.16 of the FL(S)A 2006 amended s.10 of the FL(S)A 1985 so that property would be valued at the “appropriate valuation date” rather than the relevant date

Question 21

What is meant by the appropriate valuation date?

Answer 21

FL(S)A 1985 s.10(2A) as amended by the FL(S)A 2006 s.16

• Date parties agree on
• in absence of agreement the date the order is made

Question 22

Are pensions to be included in matrimonial property?

Answer 22

YES

-per s.10(5) of the FL(S)A 1985

Question 23

What is the Formula to work out the proportion of the pension which is matrimonial property

Answer 23

CETV x years in scheme (married)
_________
total years in scheme

Question 24

EXAMPLE

• Gordon began contributing to a pension scheme in 1992
• He married Hilda in 2005
• They ceased cohabitation in 2010 - The pension was valued at £50,000 at the relevant date
• How much of the pension will be matrimonial property?

Answer 24

50,000x5
________

18

= £13,888 of the pension in will form matrimonial property

Question 25

If a husband has a pension as well as other assets what can they agree upon with the spouse?

Answer 25

• The spouse would be entitled to a half share of each of these as matrimonial property
• Often the person holding the pension wishes to protect it and therefore may pay more from other assets to the spouse
• This is an offset against an equivalent value

Question 26

EXAMPLE

• Gordon wishes to protect his pension rights
• He is divorcing his wife Anne
• He has been part of a pension scheme for 15 years, and married for 5
• His CETV has been valued at £30,000
• He has savings of £100,000

(a) How much of the pension would be matrimonial property?
(b) Could Gordon protect his pension rights?

Answer 26

(a) 30,000x5
________
15

= £10,000 matrimonial property

(b) In theory the spouse would be entitled to half of all assets
- £5,000 pension
- £50,000 savings
TOTAL - £95,000

To protect his pension rights Gordon may transfer £55,000 to the spouse as an offset against an equivalent value

So he will lose more savings but keep his pension rights

Question 27

Where no assets are available how may a pension be split in accordance with financial provisions?

Answer 27

As per s.12A of FL(S)A 1985 -

• Earmarking, lump sum order, this is possible where pension contains lump sum payable on death
• As per s8(1)(baa) Pension may be shared when it matures

Question 28

What is fair share?

Answer 28

FL(S)A 1985, s.10(1)

Question 29

When may matrimonial property not be divided equally?

Answer 29

• If special circumstances justify a different division

- Found in s.10(6) of FL(S)A 1985

Question 30

When does the special circumstance of source of funds under s.10(6)(b) allow for unequal sharing?

Answer 30

Property which is acquired wholly or partially with funds or assets derived from other sources need not be shared equally

Question 31

EXAMPLE
- Gordon saves up £50,000 prior to his marriage with Anne to with the intent of purchasing a home
- On purchasing that home the house would fall in to matrimonial property
Wil gordon have to split the share of the property if he and Anne are divorced?

Answer 31

• Gordon may satisfy a special circumstance under s.10(6) of the 1985 Act
• s.10(6)(b) provides an exception to the rule were funds used to purchase any matrimonial property were not derived from income of the marriage
• As Gordon used his saving prior to the marriage unequal sharing of the value of the house may be justified.

Question 32

What happened in the case of Jacques v Jacques 1997?

Answer 32

WHERE SPECIAL CIRCUMSTANCES COUNTERBALANCE ONE ANOTHER, EQUAL SHARING IS BEST COURSE
- Case where husband owned property prior to marriage solely
- He sold said property to purchase the house he and his spouse occupied together
- Upon divorce the husband argued that his purchase of the house with funds used from proceeds of the house he owned alone should amount to a special circumstance under s.10(6)(b) of the 1985 Act
HELD
- The proceeds used from prior owned house were of little importance in justifying special circumstance
- The spouse had lived with the husband in the first house prior to marriage and was joint owner on second house
- Both could be considered special circumstances and thus balanced one another out

Question 33

Where can details on what fair sharing is be found?

Answer 33

FL(S)A 1985 s.10(1)

Question 34

What happened in the case of Robertson v Robertson 2000 (R v R)

Answer 34

• Husband inherited and gifted substantial assets which made up majority of matrimonial property
• Defence argued that there were special circumstances present which should justify and unequal share
• Pursuer argued that in spite of the matrimonial property being derived from mainly gifts and inheritance presumption of equal sharing should stand
  HELD
• Large extent of net value of assets gifted or inherited did constitute special circumstances under s.10(6)

Question 35

What happened in Kerrigan v Kerrigan 1988?

Answer 35

• Husband’s mother paid full deposit for house
• the husband paid the whole of the mortgage during the marriage which only lasted 2 month
• House registered jointly
  HELD
• Entire value of the house was awarded to the husband

Question 36

What happened in M v M 2014?

Answer 36

• Case where 90% of assets ha been obtained by funds derived from wife’s pre relationship
• Parties agreed to a 90/10 split

Question 37

EXAMPLE

• Gordon used £50,000 of pre relationship money to buy house in contemplation of marriage
• House will be matrimonial property

Upon divorce will the property be shared equally?

Answer 37

Under s.10(6)(b)
- Gordon may be able to satisfy a special circumstance that because he used his own funds prior to the marriage to buy the home the share should be an unequal one in his favour

Question 38

EXAMPLE

• Gordon saves £80,000 during his marriage to purchase family home
• He purchases the house and it becomes matrimonial property

Does Gordon potentially have rise of a special circumstance if they divorce?

Answer 38

NO
- Special circumstances would not be derived in this situation as the £80,000 in this situation would have derived from income and efforts during marriage.

Question 39

What is meant by the special circumstance of ‘Dissipation, destruction or alienation of assets’ per s.10(6)(c) FL(S)A 1985

Answer 39

Party who has wilfully reduced the total value of matrimonial property which would otherwise have been available for distribution.

Question 40

What happened in Short v Short 1994?

Answer 40

• Wife dissipated assets by fraudulently borrowing £20,000 in security of the matrimonial home without husbands knowledge.
• Her half share in matrimonial property was reduced by subtracting nominally the debts she had run up from the matrimonial assets
• Equal division was then made after subtracting those debts

Question 41

In Park v Park 1988. Did the wife have a special circumstance under s.10(6)(c) of FL(S)A 2006

Answer 41

NO
- Husband failing to meet mortgage payments resulted in matrimonial home being sold at a loss
- Question before the court was whether this satisfied dissipation, destruction or alienation of property
HELD
- Passive failure which cause dissipation, destruction or alienation of property not sufficient
- The wife could have paid mortgage payments had she wished
- Husband still received equal share

Question 42

What type of behaviour does s.18 of the FL(S)A 1985 seek to prevent?

Answer 42

Fraudulent Behaviour
- Court may set aside or vary terms of transactions which transfer property which have the effect of trying to defeat financial provisions.

Question 43

EXAMPLE

• Gordon purchases a flat in his sole name for £100,000
• He is married to Anne when he acquired the flat
• Gordon has an affair with Linda, and proceeds to give her the flat as a gift
• 2 years later Gordon divorces Anne

With reference to relevant legislation will the flat fall in to matrimonial property?
If not will Anne have any claim over the value of the flat?

Answer 43

Under s.18 of the FL(S)A 1985 a divorcee has the right to petition the court to set aside or vary terms of a transaction of transfer of property if within one year of the divorce and the transaction is within 5 years past

• In this case the flat would not fall in to matrimonial property even though it should have but for the transfer
• Anne can therefore petition the Court to set aside the transaction and the Court can do so if it sees fit?

Question 44

EXAMPLE

• Gordon gifts flat to mistress Linda when still married to Anne
• The flat was acquired for £100,000 during the marriage solely by Gordon
• Linda proceeds to sell the flat to a third party in good faith for market value

Would Anne be able to exercise s.18 to have the transaction set aside?

Answer 44

NO

• Anne may be successful in arguing that the gift amounted to dissapation under s.10(6)(c) of FL(S)A 1985
• This may entitle are to more than a 50/50 share of matrimonial property to compensate for the flat being gone

Question 45

Under what circumstances would the special circumstance under s.10(6)(d) apply?

Answer 45

• Where property is used as family home for children
• Where the matrimonial home is used also as means of a business
• In respect of pensions which are yet to mature.

Question 46

How was s.10(6)(d) applied in Skarpass v Skarpass 1993?

Answer 46

• To the nature of the matrimonial property being made up of funds from an action of damages
• s.10(6)(d) applied to discount the solatium award of damages plus interest and loss of future earnings
• This on the basis of that the nature of the matrimonial property was a special circumstance

Question 47

What happened in Peacock v Peacock 1994?

Answer 47

• Case where equal sharing of the value of the matrimonial property would not allow for either party to purchase property to house their two children
• This fell in to the category of s.10(6)(d) as a special circumstance
• The trial judge made an order to transfer the husband’s share in the family home to the mother who had legal custody
• This allowed her to remain in the home with the children
• Due to the nature of the familiy’s lack of matrimonial property all that could be awarded in return to the husband was a life insurance policy worth £643

Question 48

How did the trial judge deviate away from equal sharing in Geddes v Geddes 1993?

Answer 48

• Case where husband purchased a farm with his own funds to be used as the family home
• The sheriff, rather than making an award of 1/2 to the wife, awarded her 1/5 of the value of the matrimonial home
• This was to ensure that the home did not have to be sold to satisfy the value of the award
• The thought process being that the matrimonial home was also a business providing income
• This 1/5 was made possible by being paid in instalments to be paid by the income of the payer so that it would not destroy his business.

Question 49

Will a court when possible seek to prevent the realisation of a matrimonial home if it is also used for business?

Answer 49

YES
In Mayor v Mayor 1995 the trial judge made clear that “one should hesitate long and hard before ordaining the disposal of an income producing asset such as a family business.”

Question 50

What does the special circumstance under s.10(6)(e) seek to protect?

Answer 50

• those who are ordered to transfer property from one to another are not burdened with the expense of doing so
• E.g. solicitor fees or taxes

Question 51

What happened in W v W 2013?

Answer 51

• Case where court reduced notional value of shares to be transferred
• They took in to account the fact that after the pursuer transferred the shares to the defender to be sold the defender would be liable to capital gain tax

Question 52

Is conduct a special circumstance?

Answer 52

NOT IN PRINCIPLE

- s. 11(7) of the FL(S)A 1985 states when conduct or either party may be regarded as a special circumstance

Question 53

What does “economic advantage” mean in respect of s. 9(1)(b) of the FL(S)A 1985

Answer 53

• Any advantage gained whether before or during the marriage or CP
• Includes gains in capital, in income and in earning capacity

Question 54

What does “contribution” mean in respect of s. 9(1)(b) of the 1985 Act?

Answer 54

• Means contributions made whether before or during the marriage or CP
• Includes indirect and non- financial contributions
• Any such contribution made by looking after the family home or caring for family

Question 55

EXAMPLE

• Gordon and Anne have two children
• Prior to the birth of the first child both were employed in well paid jobs
• Gordon is a doctor and Anne was a solicitor
• They earned very similar wages
• When the baby arrived it was agreed Anne would take time away from employment to carry bulk of emotional and physical care towards the child by working at home
• Gordon continued working to provide financial care
• Ten years later the couple are seeking a divorce
• Gordon has been promoted several times and is earning double his wage from the beginning of the marriage
• Anne has no wage at all as she has been working at home to provide for children and sees difficulty in retraining

Has either party been economically advantaged or disadvantaged?
Advise Anne on her options

Answer 55

• Anne has been economically disadvantaged
• She has no wage at all as she has been spending primary time looking after children
• If she did return to work it would be on the same salary she did prior to the birth of children
• Little employment history
• Gordon has been economically advantaged as he has continued in paid employment and enjoyed several promotions thanks to Anne’s sacrifice
• Anne may be eligible for a deviation from equal sharing under s. 9(1)(b) of the FL(S)A 1985
• This may be done by requesting a large proportion of the matrimonial property.

Question 56

How is s. 9(1)(b) of FL(S)A 1985 regulated?

Answer 56

By s. 11(2) of the 1985 Act

- What the Court must have regard to before making a decision

Question 57

If the there is not matrimonial property, can a court make an order under s. 9(1)(b) for payment from pre relationship by one spouse to another?

Answer 57

YES

Question 58

Why in practice are courts reluctant in making orders under s.9(1)(b) of the FL(S)A 1985?

Answer 58

• As s.11(2) provides what the Court must take in to account

- This includes the balancing out of economic advantages and disadvantages

Question 59

What happened in De Winton v De Winton 1996?

Answer 59

• Upon divorce of a wealthy marriage there was no matrimonial property in respect of s.10(4) and therefore nothing to divide under s.9(1)(a)
• All property collected by respective parties prior to marriage
• Husbands property worth £1 million
• Wife share holding in family company worth £160,000
• Wife sent children to private school with own personal money, and raise the standard of living in the household
• As there was no matrimonial property the wife had the only options of claiming under s.9(1)(b)
• Court accepted that she had been economically disadvantaged but also found she had conferred no economic advantage on her husband either
• He would not have chosen to send the children to private school
• other expenditures made by her were deemed unnecessary luxuries
• Court did award £30,000 for financial contributions she had put in to the husband’s business.

Question 60

Did s.9(1)(b) apply in the case of Welsh v Welsh 1994?

Answer 60

NO

• Husband had been employed for entirety of 18 year marriage
• he had acquired full benefits and substantial pension
• The wife argued she had been economically disadvantaged per s.9(1)(b) as she gave up her job to look after home and children
• Court found that the husband supported her fully throughout the marriage and she was benefitting from the matrimonial home which he purchased with his sole earnings
• Contributions balanced each other out per s.11(2)
• s.9(1)(b) did not apply

Question 61

What happened in Coyle v Coyle 2004?

Answer 61

• Wife (pursuer) gave up successful career at husband’s request to undertake domestic task and childcare after the were married
• Had she continued working she would have incurred substantial funds as well as a substantial pension during the marriage
• She had been economically disadvantaged but the court held that s.9(1)(b) does not provide automatic compensation and in this case the wife had not established an economic advantage which are her spouse enjoy that she was responsible for and this was fair to take into account
• It was true in saying that if she hadn’t stopped working the husband would have had domestic childcare costs but she would also have been earning substantial wealth if this was the case
• No connection between increase in value of business from wife’s non financial domestic contributions
  HELD
• In this case no deviation from equal share was justifiable as there was sufficient matrimonial property to compensate wife fairly
• Wife benefitted from property transfer order in relation to family home which had increased substantially from relevant date and date of proof
• This was held to correct any economic disadvantage she may have suffered.

Question 62

Under s.9(1)(c) of the FL(S)A 1985 there is a provision for fair sharing of economic burden of childcare, what is this section recognising?

Answer 62

• That party with care of children may incur additional costs
• E.g. from being only able to work part time, or paying for childcare
• Fair to share these burdens.

Question 63

What shall the court have regard to in respect of s.9(1)(c) of the 1985 Act?

Answer 63

List stipulates what the court will have regard to in s.11(3).

Question 64

In respect of s.9(1)(c) will the court take in to account any support already being provided by the defender to the dependant?

Answer 64

YES
- Under s.11(6) the Court will consider whether the defender is legally obliged to provide such support under s.11(3) if already providing support in other means.

Question 65

What happened in Morrison v Morrison 1989?

Answer 65

• Wife was awarded 2/3 of the value of the matrimonial home so that she could look after children aged 13 and 10
• s9(1)(c) was providing a deviation from equal sharing in this case

Question 66

What happened in CB v MB 2012?

Answer 66

• court were satisfied that an award should be made taking in to account s.11(3) principles
• Wife was financially dependent on her husband which meant an award should be made to assist the economic burden of looking after the children
• the pursuer was ordered to make 6 payments of capital to the defender to assist in the burden of childcare per s.9(1)(c)

Question 67

What was the preference of s.9(1)(d) of FL(S)A 1985?

Answer 67

To give parties a “clean break” after marriage with no continuing financial relationship

Question 68

How may an award be made under s.9(1)(d) of the FL(S)A 1985?

Answer 68

• Capital sum order
• Transfer property order
• if neither of the above are appropriate then by way of a periodical allowance

Question 69

What happened in Sweeney v Sweeney 1993?

Answer 69

COURT GRANT s.9(1)(d) ORDER

• Pursuer had not worked independently since before the birth of the first child ( 14 years earlier)
• accepted by the sheriff that she would try and retrain, but she felt she’d be hampered by her age and lack of work history
• Court agreed that she would beed reasonable time to adjust to loss of support and the pursuer was granted a periodical allowance of £500pm for three years from the defender.

Question 70

Smith v Smith 2010

Answer 70

AWARD GRANTED UNDER s.9(1)(d)

• Wife brought action for divorce and sought a periodical allowance under s.9(1)(d)
• She had been dependent on her husband for a period of 17 years mainly due to suffering from rehumatoid arthritis and thereby being unable to work
• Court accepted there was a case in respect of s.9(1)(d) for periodical allowance as the pursuers income would be nil or very close to
• Granted a periodical allowance of £2000pm for three years

Question 71

What must the court have regard to before making an order under s.9(1)(d) of the 1985 act?

Answer 71

List of what the court must have regard to detailed in s.11(4) of the 1985 Act.

Question 72

What did Lord Hope state about s.9(1)(d) in joint case Millar v Millar, McFarlane v McFarlane 2006?

Answer 72

• length of period for which a periodical allowance should be awarded should no longer be confined to three years
• He believes the court should have discretion to provide longer periods in exceptional circumstances

Question 73

What was the purpose of s.9(1)(e) of the 1985 Act?

Answer 73

• intended as protection of last resort

- However, used more frequently than may have been intended

Question 74

What must there be to satisfy an award under s.9(1)(e) of the 1985 Act?

Answer 74

A causal link between the divorce and the hardship suffered at the time of the divorce

Question 75

Was an award made under s.9(1)(e) of the 1985 Act in the case of Barclay v Barclay 1991?

Answer 75

• wife was permanently disabled as a result of multiple sclerosis
• court declined order under s.9(1)(e) on grounds that the separation pending divorce had not caused her serious financial hardship
• They accepted the wife was suffering serious financial hardship but this was not a direct result of the divorce as she was only 5% worst of

Question 76

In the previous mentioned case of Smith v Smith 2010 in which she was granted a periodical allowance under s.9(1)(d), was the pursuer granted an award under s.9(1)(e)?

Answer 76

YES

• The court assessed that she would still suffer serious financial hardship after sale of the matrimonial home
• this was treated as a direct cause of the divorce

Question 77

What shall the Court have regard to before making an order under s.9(1)(e) of the FL(S)A 1985?

Answer 77

The court will have regard to the list laid out in s.11(5) if the FL(S)A 1985

Question 78

Under s.8(2) of the FL(S)A 1985 the court must take in to account the resources of the parties before making an order, what is meant by this?

Answer 78

• Court may lower or increase its award based on resources of party
• E.g. wife with lack of resources may be awarded more
• Husband who has numerous resources may be awarded less

Question 79

Do “resources” mentioned in s.8(2) only apply to matrimonial property?

Answer 79

NO

- Refers to assets such as future earnings, insurance policies which mature on divorce, lump sum payments.

Question 80

When may an incidental order be used?

Answer 80

• Used by Court to assist in implementing a decision made under s.9 principles.

Question 81

What happened in Kibble v Kibble 2010?

Answer 81

PRE-NUPS can be challenges

• A wife (pursuer) sought to have a prenuptial agreement set aside under s.16 of the 1985 Act
• Prenup stated that matrimonial home was not to be considered matrimonial property
• Sheriff at first instance rejected the claim that the agreement should be set aside
• On appeal the wife argued that the terms of the prenup that the matrimonial home was not to be considered matrimonial property was not fair and reasonable at time entered into
• Defence argued that wording of s.16 referred to those already married and that the prenup was not an agreement as to financial provision but on agreement that certain property would not fall in to matrimonial property

HELD - Sheriff allowed the appeal

• he stated that agreements made prior or during a marriage are subject to provisions of s.16
• Furthermore the sheriff rejected defender’s argument that the wording of the legislation referred only to those who were already married

Question 82

What happened in the English case of Radmacher v Granatino 2010?

Answer 82

• Husband had signed prenuptial agreement prior to marriage without legal representation
• Supreme Court held that it was not unfair to hold a husband to the terms laid down by a prenuptial agreement
• In Scotland this may have been deemed unreasonable