Scottish Financial Provisions Flashcards
Which jurisdiction favours a clean break principle?
Scotland
In which case does Lord Hope state that, ‘the rules are clear in what the court must do in order to divide up estates’?
Little v. Little 1990
What must there be for a marriage or civil partnership to end?
Divorce Action
Action for the dissolution of a civil partnership
What must there be for a marriage or civil partnership to end?
Divorce Action
Action for the dissolution of a civil partnership
Under which act are financial divisions dealt with?
Family Law (Scotland) Act 1985
What else can be taken into account in relation to the resources of each party?
Other family wealth and trust funds
Is there a hierarchy to the Section 9 Principles?
Yes
If one spouse has given up work, what can their partner be said to have done as a result?
Benefitted
Do children of the couple have to be biological?
No, it includes children the couple have come to accept as their own
Under which act are financial divisions dealt with?
Family Law (Scotland) Act 1985
Do children of the couple have to be biological?
No, it includes children the couple have come to accept as their own
Where can the definition of what marital property be found?
S.10(4) Family Law (Scotland) Act 1985
What is the relevant date?
Cut off time for determining what is or is not matrimonial property
Where can the relevant date be found in the statute book?
S.10(3) Family Law (Scotland) Act 1985
Where can the relevant date be found in the statute book?
S.10(3) Family Law (Scotland) Act 1985
In what case was it determined that a ‘substantial change’ qualify as the relevant date?
Banks v. Banks 2005
In what case was the award of a personal injury claim prior to the relevant date of cohabitation ceasing, still awarded to the wife?
Skarpas v. Skarpass 1993
In what cases was the husbands alcoholism and recklessness with his finances grounds for the judge to bring the division of a PI claim back up to 50%?
Skarpass v. Skarpass 1993
In what case was the remarrying of the couple grounds for the marital home from the first marriage to become the sole property of the husband following the second divorce?
Mitchell v. Mitchell 1995
Does it matter who bought an item during the marriage for it to become marital property?
No
Are matrimonial and joint property the same thing?
No
Does what the land registration certificate say make a difference in the division of assets?
No
Are gifts from a 3rd party marital property?
No, unless that gift converts to a new form of asset. E.g. money to property
In what case was the wife’s family’s money used to purchase a house and it was determined the house was martial property?
Latter v. Latter 1990
In what case were shares acquired by the husband prior to the marriage not matrimonial property?
Latter v. Latter 1990
In what case was the companies reorganisation not fundamental enough to change the nature of shares?
Whittome v. Whitome (no1) 1994
Under which act are financial divisions dealt with?
Family Law (Scotland) Act 1985
In what case was the companies reorganisation not fundamental enough to change the nature of shares?
Whittome v. Whitome (no1) 1994
When is the value of the marital assets taken from?
Prior to the relevant date
In which case was it decided that an increase in value after the relevant date is not matrimonial property?
Wallis v. Wallis 1992
Which act changed the relevant date to an appropriate date?
Family Law (Scotland) Act 2006 S.16
In which case was it determined the actual selling price was the one to be used when transferring a share to another spouse?
Smith v. Smith 2009
Which act makes it clear that pensions are to be included in matrimonial property?
Family Law (Scotland) Act 1985 S.10(5)
Which act makes it clear that pensions are to be included in matrimonial property?
Family Law (Scotland) Act 1985 S.10(5)
What is the pensions formula?
Cash Equivalent Transfer Value * Years in the Scheme while married/ Total years in the scheme
Does the pension itself have to be paid to another spouse or can other assets be used?
Other assets can be used providing the spouses share is paid.
Can you have both a pension and an earmark share?
No
What are the advantages of pension sharing and earmarking?
You do not have to produce the capital initially.
Where can pension sharing be found in statute?
Family Law (Scotland) Act 1985 S.8(1)(baa)
Where can earmarking be found in statute?
Family Law (Scotland) Act 1985 S.12A
Where in statute can a ‘fair share’ be found?
Family Law (Scotland) Act 1985 S.10(1)
In which case was it determined that while there can be special circumstances for allowing an unequal share, they do not automatically allow for an unequal share.
Jacques v. Jacques 1997
Where in statute can ‘special circumstances’ be found?
Family Law (Scotland) Act 1985 S.10(6)
In which case was the husbands large contribution of funds found to be grounds for a ‘special circumstance’.
Robertson v. Robertson 2000
In which case was the husbands mother’s money for the deposit and the husband’s payment of the mortgage, grounds for awarding the whole value of the house to the husband?
Kerrigan v. Kerrigan 1988
In which case was the husband’s strong financial position prior to the marriage grounds for ‘special circumstances’, but was not strong enough for full restoration to a pre marital state?
CB v. MB 2012
In which case was the husband’s strong financial position prior to the marriage grounds for ‘special circumstances’, but was not strong enough for full restoration to a pre marital state?
CB v. MB 2012
In which case was the difficulties in division of premarital assets and what was spent on family needs highlighted?
CB v. MB 2012
In which case was the wife’s unknown loans grounds for an unequal division of assets?
Short v. Short 1994
In which case was the husbands inability ot pay the mortgage not applicable as a ground for an uneven division?
Park v. Park 1988
Do poor business decisions, investment decreases or bad luck allow for Section 10(6) of the Family Law (Scotland) Act 1985 to be used?
No
Which provision is a safe guard against asset hiding for up 1 year after the award has been made?
Family Law (Scotland) Act 1985 S.18
Which provision covers the use of the family home for business activity?
Family Law (Scotland) Act 1985 S.10(6)
In which case was the ordinary nature of the award (a PI claim) viewed as ground not to split the award?
Skarpass v. Skarpass 1993
In which case was the husbands inability to look after the children grounds for an unequal division of assets, due to neither party being able to afford another home?
Peacock v. Peacock 1994
In which case was the disposal of an asset that provided income grounds for an unequal division?
Geddes v. Geddes 1993
In which case was the splitting of a business asset (premises used for storage) grounds for an equal division of assets?
Mayor v. Mayor 1995
In which case was the significant reduction in price of a home by a father to his son grounds for special circumstances?
Armstrong v. Armstrong 2008
In what circumstances will the conduct of either party be taken into account?
Where the conduct has adversely affected the financial resources which are relevant to the decision of the court on a claim for financial provision.
Which provision governs economic advantage and disadvantage?
Family Law (Scotland) Act 1985 S.9(1)(b)
In which case was it held that the wife acting as housekeeper, nanny and hostess was not enough to allow for an equal share of assets?
Robertson v. Robertson 2000
In which case was it held that the wife acting as housekeeper, nanny and hostess was not enough to allow for an equal share of assets?
Robertson v. Robertson 2000
In which case was it held that domestic family arrangements do not necessarily advantage or disadvantage the couple?
De Winton v. De Winton 1996
In which case was it held that the wife staying at home amounted to a fair balance of assets being divided?
Welsh v. Welsh 1994
In which case was it held that the wife staying at home amounted to a fair balance of assets being divided?
Welsh v. Welsh 1994
What provision recognises that one party may have additional charges from looking after the children?
Family Law (Scotland) Act 1985 S.9(1)(c)
In which case was the wife awarded 2/3 rds of the family home and its contents, so she could look after the children?
Morrison v. Morrison 1989
In which case did Lord Tyre state the restriction of the wife’s earning capacity was due to caring for the children of the marriage?
CB v. MB 2012
What provision recognises that one party may have additional charges from looking after the children?
Family Law (Scotland) Act 1985 S.9(1)(c)
In which case did Lord Tyre state the restriction of the wife’s earning capacity was due to caring for the children of the marriage?
CB v. MB 2012
Which provision governs the adjustment from financial dependence principle?
Family Law (Scotland) Act 1985 S.9(1)(d)
Under the adjustment from financial dependence principle what is the maximum length payments can be made?
3 years
In which case were monthly payments awarded for 1 year as the wife had not worked in 20 years?
Sweeney v. Sweeney 1993
Which provision governs the adjustment from financial dependence principle?
Family Law (Scotland) Act 1985 S.9(1)(d)
In which case were monthly payments awarded for 1 year as the wife had not worked in 20 years?
Sweeney v. Sweeney 1993
In which case was the wife awarded £1500 for the maximum period of time due to her supporting her husband and being ill?
Smith v. Smith 2009
Which provision is a last resort if no award has been made?
Family Law (Scotland) Act 1985 S.9(1)(e) Serious Financial Hardship
In which case was the wife awarded £2000 for the maximum period of time due to her supporting her husband and being ill?
Smith v. Smith 2009
Which provision is a last resort if no award has been made?
Family Law (Scotland) Act 1985 S.9(1)(e) Serious Financial Hardship
In which case was no award made under the Serious Financial Hardship provision as the parties were too poor to begin with?
Barclay v. Barclay 1991
In which case was the wife awarded £1500 a month until the defenders retirement under the Serious Financial Hardship provision?
Smith v. Smith 2009
Which provision is a last resort if no award has been made?
Family Law (Scotland) Act 1985 S.9(1)(e) Serious Financial Hardship
If one party is going to enter a well paying job following divorce can this be taken into account by the court?
Yes
What provision governs the payment of one spouse to another?
Family Law (Scotland) Act 1985 S.8
Will a prenuptial agreement be upheld in Scotland and on what grounds?
Yes, providing there is no duress.
Will changes in circumstances following a prenuptial agreement be taken into consideration?
No
What provision governs prenuptial agreements?
Family Law (Scotland) Act 1985 S.16
What provision governs prenuptial agreements?
Family Law (Scotland) Act 1985 S.16
Can you contract out of a prenuptial agreement?
No
In which case was the parties intention to marry enough for a prenuptial agreement to apply?
Kibble v. Kibble 2010
In which case was it held that the unequal division of assets did not account for unfairness, so long as the parties were not under duress and sought independent legal advice.
Radmacher v. Granatino 2010
