If I divorce my spouse, will I get 50% of their assets?

When contemplating a divorce, one of the most pressing concerns is the division of assets. A common question that arises is: “If I divorce my spouse, will I get 50% of their assets?” The answer, however, isn’t as straightforward as a simple yes or no.

What is matrimonial property?

Matrimonial property, often referred to as the matrimonial pot, encompasses the entire net value of assets owned by the couple at the time of their formal separation. These assets include both individually and jointly owned property. The date of separation, which serves as the reference point for all future proceedings, is the date when the couple began living separate lives, whether under the same roof or after one person moved out of their shared home.

In Scottish courts, assets owned before the marriage, inherited during the marriage, or acquired after the date of separation are not considered part of the matrimonial pot. However, all other assets; including pensions and business interests, and property acquired during the marriage period are matrimonial property. Additionally, any debt incurred during the marriage is also considered part of the matrimonial pot.

Factors Influencing Asset Division

In Scotland, assets and liabilities which are considered to be matrimonial property should be fairly divided between the spouses when they divorce. However, fairness does not equate to equality. The law uses the word “fair”, not equal in terms of division. Judges have broad discretion to divide assets in a manner they deem just and reasonable. This means that one spouse might receive more than 50% of the assets if the judge determines it is fair based on the circumstances such as:

1. Has either spouse suffered a financial disadvantage to the other spouses’ financial advantage?
2. Will either spouse leave the marriage with a more significant financial burden for caring for the children of the marriage?
3. Has either party inherited assets or brought debts into the marriage that should be considered separate to the matrimonial property?

Who gets the house in a divorce?

In Scotland, the division of assets in divorce includes considerations about the family home. If the house is categorised within the matrimonial pot, it typically undergoes a fair split according to Scottish divorce law. The court has discretion in deciding various outcomes, such as transferring ownership from the joint names of both spouses solely to one spouse, or selling the house. The specific outcome hinges entirely on the circumstances of case, and Scottish courts determine this on a case-by-case basis.

Conversely, if one spouse purchased the house before marriage and it wasn’t utilised as a family residence, it does not qualify as matrimonial property. Therefore, it would not ordinarily be subject to division under Scottish divorce law.