In England and Wales
If you cannot come to an agreement together (eg. if there have been issues of domestic violence), you can apply to the court to decide on the post-divorce financial arrangements, in the form of legally binding 'financial order'. This may include things such as a lump sum payment, ongoing maintenance payments and ownership of property. You will need to fill in a financial order application form and send two copies of the form to the court dealing with your case. The process can take 6 - 12 months and will involve going to court.
There are no exact rules on how assets should be divided between spouses during a divorce in England and Wales. Judges have wide discretion to consider the financial arrangements between the divorcing spouses but each case will be assessed on its own individual facts. There are a number of considerations that the courts will take into account such as the welfare of any minor children of the family, the financial needs of both spouses, their ages and the duration of the marriage, as well as any contributions to the marriage made by either party.
Usually, both parties will have a strong claim to share equally all matrimonial property built up during the marriage (for example, the family home, pensions and savings). However, in cases where the claimant's financial needs cannot not be met with recourse only to this matrimonial property, the court could consider non-matrimonial property which was brought into the marriage, inherited or gifted during the marriage.
If you cannot come to an agreement together (eg. if there have been issues of domestic violence), you can apply to the court to decide on the post-divorce financial arrangements, in the form of legally binding financial provision. This may include things such as regular payments or a lump sum payment. The courts may also make an order regarding pension arrangements.
You will need to state that you are applying for financial support in your Initial Writ (Form G1) which can be found on the Scottish Courts and Tribunals website. A divorce where finances are contested is likely to take 9 - 12 months.
In Scotland, the ‘matrimonial property’ in question will be formed by all assets acquired over the course of the marriage and up to the date of separation. Assets that are acquired post-separation or pre-marriage (with the exception of a house bought as a family home and its furnishings), as well as gifts or inheritance from a third party are all excluded. Inherited gifts that have been sold to buy something else over the course of a marriage have the potential to be included as part of matrimonial property although this can be arguable on the facts of a case. Additionally, all assets which make up the matrimonial property must be valued at that date and this figure becomes the net value available for division between spouses.
In the majority of cases the net value of the matrimonial property identified and valued at the ‘relevant date’ will be divided fairly between the spouses. The courts can depart from equal sharing but this must be justified by ‘special circumstances’ or a compelling argument from a spouse.
Date of separation
The date of separation of spouses (also called relevant date) can be the date from which the spouses ceased to cohabit, an earlier date or the date of service of the summons in an action for divorce. It is most often recognised as the date spouses actually separated.