Guarding against the pitfalls of divorce

14/11/2013

There is no shortage of advice available to couples considering marriage, particularly in the era of the internet and social media. Clint Eastwood, the 83 year-old star of over 50 feature films, offered his own pearls of wisdom this week. When asked by an entertainment journalist for his thoughts on marriage, Eastwood is reported to have told his interviewer to “Think long and hard before you get married.”

This apparently cynical response is perhaps more understandable when it is borne in mind that Eastwood’s wife of 17 years has recently filed for divorce. She is reported to be seeking orders for residence of the couple’s daughter and for financial support from her husband.

Rightly or wrongly, there is often a perception that when a couple divorce, the party who is the main financial earner is the one who will be hardest hit by any court orders in the event that the matter ends up before a Sheriff or Judge.

In Scotland, the starting point for any financial orders is that the assets which were acquired by the parties during the marriage (save for certain types of property such as those which have been acquired by gift or inheritance) will be divided between them 50-50. Scots law does however allow a court to take certain factors into account which may, but do not have to, lead to departure from a 50-50 split. These factors include:-

  • Whether one of the parties has gained an advantage, or suffered a disadvantage, in terms of their financial position and employment prospects as a direct result of the marriage;

  • Where the money which has been used to purchase assets during the marriage has come from eg. from an inheritance or from savings which one of the parties had before the marriage; and

  • The terms of any agreement which has been entered into between the parties.

The last of these factors alludes to one way in which the parties to a marriage can look to protect their positions in the event that that marriage ends prematurely. It is open to parties to enter into an agreement before they exchange their wedding vows. These agreements are commonly known as pre-nuptial agreements or “pre-nups”.

Pre-nuptial agreements are becomingly increasingly popular in Scotland, particularly in situations where parties have built up significant assets before the marriage. While it is understandably a step which parties are reluctant to take before they become husband and wife, ultimately a pre-nuptial agreement allows parties to be protected in the event that a marriage does come to a premature end. If such an event does occur, it is likely that implementing a pre-nuptial agreement will offer a far more simple, certain and straightforward way of resolving financial matters between a couple than trying to reach agreement after the relationship has deteriorated or leaving matters up to the discretion of a Sheriff or Judge.

For further assistance or advice please contact a member of our Family Law team.