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Family law > Scottish Financial Provisions > Flashcards

Scottish Financial Provisions Flashcards

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1
Q

Which jurisdiction favours a clean break principle?

A

Scotland

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2
Q

In which case does Lord Hope state that, ‘the rules are clear in what the court must do in order to divide up estates’?

A

Little v. Little 1990

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3
Q

What must there be for a marriage or civil partnership to end?

A

Divorce Action

Action for the dissolution of a civil partnership

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4
Q

What must there be for a marriage or civil partnership to end?

A

Divorce Action

Action for the dissolution of a civil partnership

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5
Q

Under which act are financial divisions dealt with?

A

Family Law (Scotland) Act 1985

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6
Q

What else can be taken into account in relation to the resources of each party?

A

Other family wealth and trust funds

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7
Q

Is there a hierarchy to the Section 9 Principles?

A

Yes

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8
Q

If one spouse has given up work, what can their partner be said to have done as a result?

A

Benefitted

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9
Q

Do children of the couple have to be biological?

A

No, it includes children the couple have come to accept as their own

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10
Q

Under which act are financial divisions dealt with?

A

Family Law (Scotland) Act 1985

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11
Q

Do children of the couple have to be biological?

A

No, it includes children the couple have come to accept as their own

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12
Q

Where can the definition of what marital property be found?

A

S.10(4) Family Law (Scotland) Act 1985

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13
Q

What is the relevant date?

A

Cut off time for determining what is or is not matrimonial property

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14
Q

Where can the relevant date be found in the statute book?

A

S.10(3) Family Law (Scotland) Act 1985

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15
Q

Where can the relevant date be found in the statute book?

A

S.10(3) Family Law (Scotland) Act 1985

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16
Q

In what case was it determined that a ‘substantial change’ qualify as the relevant date?

A

Banks v. Banks 2005

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17
Q

In what case was the award of a personal injury claim prior to the relevant date of cohabitation ceasing, still awarded to the wife?

A

Skarpas v. Skarpass 1993

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18
Q

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%?

A

Skarpass v. Skarpass 1993

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19
Q

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?

A

Mitchell v. Mitchell 1995

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20
Q

Does it matter who bought an item during the marriage for it to become marital property?

A

No

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21
Q

Are matrimonial and joint property the same thing?

A

No

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22
Q

Does what the land registration certificate say make a difference in the division of assets?

A

No

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23
Q

Are gifts from a 3rd party marital property?

A

No, unless that gift converts to a new form of asset. E.g. money to property

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24
Q

In what case was the wife’s family’s money used to purchase a house and it was determined the house was martial property?

A

Latter v. Latter 1990

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25
Q

In what case were shares acquired by the husband prior to the marriage not matrimonial property?

A

Latter v. Latter 1990

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26
Q

In what case was the companies reorganisation not fundamental enough to change the nature of shares?

A

Whittome v. Whitome (no1) 1994

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27
Q

Under which act are financial divisions dealt with?

A

Family Law (Scotland) Act 1985

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28
Q

In what case was the companies reorganisation not fundamental enough to change the nature of shares?

A

Whittome v. Whitome (no1) 1994

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29
Q

When is the value of the marital assets taken from?

A

Prior to the relevant date

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30
Q

In which case was it decided that an increase in value after the relevant date is not matrimonial property?

A

Wallis v. Wallis 1992

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31
Q

Which act changed the relevant date to an appropriate date?

A

Family Law (Scotland) Act 2006 S.16

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32
Q

In which case was it determined the actual selling price was the one to be used when transferring a share to another spouse?

A

Smith v. Smith 2009

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33
Q

Which act makes it clear that pensions are to be included in matrimonial property?

A

Family Law (Scotland) Act 1985 S.10(5)

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34
Q

Which act makes it clear that pensions are to be included in matrimonial property?

A

Family Law (Scotland) Act 1985 S.10(5)

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35
Q

What is the pensions formula?

A

Cash Equivalent Transfer Value * Years in the Scheme while married/ Total years in the scheme

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36
Q

Does the pension itself have to be paid to another spouse or can other assets be used?

A

Other assets can be used providing the spouses share is paid.

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37
Q

Can you have both a pension and an earmark share?

A

No

38
Q

What are the advantages of pension sharing and earmarking?

A

You do not have to produce the capital initially.

39
Q

Where can pension sharing be found in statute?

A

Family Law (Scotland) Act 1985 S.8(1)(baa)

40
Q

Where can earmarking be found in statute?

A

Family Law (Scotland) Act 1985 S.12A

41
Q

Where in statute can a ‘fair share’ be found?

A

Family Law (Scotland) Act 1985 S.10(1)

42
Q

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.

A

Jacques v. Jacques 1997

43
Q

Where in statute can ‘special circumstances’ be found?

A

Family Law (Scotland) Act 1985 S.10(6)

44
Q

In which case was the husbands large contribution of funds found to be grounds for a ‘special circumstance’.

A

Robertson v. Robertson 2000

45
Q

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?

A

Kerrigan v. Kerrigan 1988

46
Q

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?

A

CB v. MB 2012

47
Q

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?

A

CB v. MB 2012

48
Q

In which case was the difficulties in division of premarital assets and what was spent on family needs highlighted?

A

CB v. MB 2012

49
Q

In which case was the wife’s unknown loans grounds for an unequal division of assets?

A

Short v. Short 1994

50
Q

In which case was the husbands inability ot pay the mortgage not applicable as a ground for an uneven division?

A

Park v. Park 1988

51
Q

Do poor business decisions, investment decreases or bad luck allow for Section 10(6) of the Family Law (Scotland) Act 1985 to be used?

A

No

52
Q

Which provision is a safe guard against asset hiding for up 1 year after the award has been made?

A

Family Law (Scotland) Act 1985 S.18

53
Q

Which provision covers the use of the family home for business activity?

A

Family Law (Scotland) Act 1985 S.10(6)

54
Q

In which case was the ordinary nature of the award (a PI claim) viewed as ground not to split the award?

A

Skarpass v. Skarpass 1993

55
Q

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?

A

Peacock v. Peacock 1994

56
Q

In which case was the disposal of an asset that provided income grounds for an unequal division?

A

Geddes v. Geddes 1993

57
Q

In which case was the splitting of a business asset (premises used for storage) grounds for an equal division of assets?

A

Mayor v. Mayor 1995

58
Q

In which case was the significant reduction in price of a home by a father to his son grounds for special circumstances?

A

Armstrong v. Armstrong 2008

59
Q

In what circumstances will the conduct of either party be taken into account?

A

Where the conduct has adversely affected the financial resources which are relevant to the decision of the court on a claim for financial provision.

60
Q

Which provision governs economic advantage and disadvantage?

A

Family Law (Scotland) Act 1985 S.9(1)(b)

61
Q

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?

A

Robertson v. Robertson 2000

62
Q

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?

A

Robertson v. Robertson 2000

63
Q

In which case was it held that domestic family arrangements do not necessarily advantage or disadvantage the couple?

A

De Winton v. De Winton 1996

64
Q

In which case was it held that the wife staying at home amounted to a fair balance of assets being divided?

A

Welsh v. Welsh 1994

65
Q

In which case was it held that the wife staying at home amounted to a fair balance of assets being divided?

A

Welsh v. Welsh 1994

66
Q

What provision recognises that one party may have additional charges from looking after the children?

A

Family Law (Scotland) Act 1985 S.9(1)(c)

67
Q

In which case was the wife awarded 2/3 rds of the family home and its contents, so she could look after the children?

A

Morrison v. Morrison 1989

68
Q

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?

A

CB v. MB 2012

69
Q

What provision recognises that one party may have additional charges from looking after the children?

A

Family Law (Scotland) Act 1985 S.9(1)(c)

70
Q

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?

A

CB v. MB 2012

71
Q

Which provision governs the adjustment from financial dependence principle?

A

Family Law (Scotland) Act 1985 S.9(1)(d)

72
Q

Under the adjustment from financial dependence principle what is the maximum length payments can be made?

A

3 years

73
Q

In which case were monthly payments awarded for 1 year as the wife had not worked in 20 years?

A

Sweeney v. Sweeney 1993

74
Q

Which provision governs the adjustment from financial dependence principle?

A

Family Law (Scotland) Act 1985 S.9(1)(d)

75
Q

In which case were monthly payments awarded for 1 year as the wife had not worked in 20 years?

A

Sweeney v. Sweeney 1993

76
Q

In which case was the wife awarded £1500 for the maximum period of time due to her supporting her husband and being ill?

A

Smith v. Smith 2009

77
Q

Which provision is a last resort if no award has been made?

A 
Family Law (Scotland) Act 1985 S.9(1)(e)
Serious Financial Hardship
78
Q

In which case was the wife awarded £2000 for the maximum period of time due to her supporting her husband and being ill?

A

Smith v. Smith 2009

79
Q

Which provision is a last resort if no award has been made?

A 
Family Law (Scotland) Act 1985 S.9(1)(e)
Serious Financial Hardship
80
Q

In which case was no award made under the Serious Financial Hardship provision as the parties were too poor to begin with?

A

Barclay v. Barclay 1991

81
Q

In which case was the wife awarded £1500 a month until the defenders retirement under the Serious Financial Hardship provision?

A

Smith v. Smith 2009

82
Q

Which provision is a last resort if no award has been made?

A 
Family Law (Scotland) Act 1985 S.9(1)(e)
Serious Financial Hardship
83
Q

If one party is going to enter a well paying job following divorce can this be taken into account by the court?

A

Yes

84
Q

What provision governs the payment of one spouse to another?

A

Family Law (Scotland) Act 1985 S.8

85
Q

Will a prenuptial agreement be upheld in Scotland and on what grounds?

A

Yes, providing there is no duress.

86
Q

Will changes in circumstances following a prenuptial agreement be taken into consideration?

A

No

87
Q

What provision governs prenuptial agreements?

A

Family Law (Scotland) Act 1985 S.16

88
Q

What provision governs prenuptial agreements?

A

Family Law (Scotland) Act 1985 S.16

89
Q

Can you contract out of a prenuptial agreement?

A

No

90
Q

In which case was the parties intention to marry enough for a prenuptial agreement to apply?

A

Kibble v. Kibble 2010

91
Q

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.

A

Radmacher v. Granatino 2010

Family law (8 decks)

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