We read further reports in the press recently suggesting once again (you may recall last year that a family court in England refused to allow a woman of 66 to divorce her husband on the basis that the evidence lead about her husband’s controlling and deeply unpleasant behaviour were found by the judge to be “of the kind expected in marriage”!) that legislation governing divorce in England and Wales is in desperate need of an overhaul.

In this most recent case a “cheating husband” secured a financial settlement of £2,725,000 after being married for only four years. The wife successfully appealed to the High Court and her husband’s award was reduced to £2m but, in her view, her ex still “won the lottery” through having an affair.

On the face of it, an award of this magnitude after such a relatively short marriage does appear to be unusual but such were the circumstances of this case. The assets in question had been significantly augmented due to the wife earning around £10.5m in bonuses alone during the marriage thereby rendering the “pot” to be divided somewhat disproportionate to the four years of marriage. The fact that the husband had been conducting an affair for at least one of the four years would doubtless have added to the wife’s ire. However, would the award have been different had the couple divorced under Scots law?

Position in Scotland

In Scotland (unlike in England), family lawyers assess the extent of “matrimonial property” as at the date of separation taken to be any assets or liabilities in the parties joint or sole names acquired between the date of marriage and the date of separation. The starting point for division is that fair sharing means equal sharing unless one party could successfully argue for there to be unequal sharing in one party’s favour. If in this case, at the date of separation, all or any part of the bonuses remained, then they would have formed matrimonial property and, therefore, be subject to a claim. The wife could perhaps try to argue that at least part of the bonuses were accrued due to her efforts prior to the marriage (if that was indeed the case) although it is hard to see on what basis she would be successful unless that truly was the case. The fact that the husband was having an affair would be taken to be the reason for the breakdown of the marriage as opposed to justification for a lesser award. The only potential basis upon which the wife could claim her husband’s affair was relevant to the division of assets would be if she could show that her husband had squandered money during the course of his affair on hotel rooms, expensive gifts and the like and this constituted a dissipation of matrimonial property which in terms of the relevant divorce legislation in Scotland may justify a departure from equal sharing.

The Scottish Courts have shown restraint in the use of this provision and it is difficult to imagine a situation where a spouse’s award would be reduced by several hundred thousand pounds as in the present case, as it is designed to compensate rather than penalise. There appears to be a greater understanding in Scotland that there are often many factors leading to the breakdown of a marriage and the conduct of a spouse will rarely be considered when dividing the assets unless the conduct has adversely affected the relevant resources.

If you would like advice relating to any of these topics, please contact a member of the Divorce and Family Law team today.



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