Divison And Protection Of Assets

Division Of Assets

The division of assets following separation in Scotland is governed by the Family Law (Scotland) Act 1985 which states that assets should be divided fairly (which usually means equally). The Act also promotes a clean break principle concerning the division of assets and liabilities enabling both parties to lead independent lives post-divorce.

Generally speaking the nature and extent of the matrimonial assets are all assets such as property, pensions, savings and investments acquired between the date of marriage or civil partnership and the date of separation, and property acquired before the marriage for use as a family home

There are however a number of exceptions to this general principal.. For example, matrimonial or partnership property does not include assets which have been gifted to or inherited by an individual during the course of the marriage or civil partnership, so long as they remain in their original form and have not been converted into another, for example using a cash inheritance to purchase a new family home.

In those circumstances it could be argued that there should be a departure from equal division as the source of funds used to purchase the asset were non matrimonial. This is very much a discretionary argument which does not guarantee that there should be a departure from equal sharing.

Minute of agreement

Any agreement reached by parties in respect of the division of the matrimonial assets can be made legally binding by recording the terms in a formal written agreement commonly referred to as a Separation Agreement. Early advice from a solicitor explaining the legal principles governing the division of assets is recommended.

Protection Of Assets

Separation may give rise to tax consequences such as income, capital gains and inheritance tax. We have a team of experts on hand who can address the complete picture, organising and structuring the affairs of individuals and families, assuring risk management and tax efficiency.

Trusts

We can advise you on Asset protection through the use of a Trust and advise you about which type of trust is suitable for your needs and assist with the ongoing administration.

Family Law
Frequently Asked Questions

What is family law?

Family Law is the umbrella term for legal matters relating to the family. It includes separation, divorce, child-related issues (including adoption), maintenance, division of assets and protective orders in cases of domestic violence. It also covers asset protection aspects such as Pre-Nuptial, Post-Nuptial and Cohabitation (or “Living Together”) Agreements.

Can you act for me if I’m outside Scotland?

We have clients from all parts of the UK, and across the world. The team has three dual qualified lawyers, who can advise on the law of England and Wales as well as the law of Scotland. We also have significant international experience. Our Head of Department, Philippa Cunniff, is one of only a handful of lawyers in Scotland who is a Fellow of the International Academy of Family Lawyers.

Do I need to have a ‘legal separation’?

Whether are not you are separated is a matter of fact – if you are no longer cohabiting as spouses/partners, you are separated. There is a legal process known as judicial separation, that is very rarely used. Most people talk about being ‘legally separated’ when they have a formal Separation Agreement regulating the issues arising out of their relationship breakdown.

Do I have any rights if I’m not married?

Since 2006, it has been possible for former cohabitants to make financial claims in the event of the relationship ending. Such claims are limited in scope and are subject to very strict time limits (at the time of writing, claims must be made within a year of the cohabitation ending). It is essential to seek expert advice at the earliest possible opportunity.

Anonymous
Family Law

“I am tremendously grateful to you for all that you have done to get me to this point – both over the long period during which the Agreement was negotiated and at various difficult moments since then. It is a huge relief to finally have this resolved, and your perspective and expertise have been absolutely indispensable.”

Pauline
Family Law

“I wanted to thank you for encouraging a tasteful and diplomatic separation. It’s made a huge difference to an already difficult time.”

Lynn
Family Law

“I just wanted to thank you for all that you have done to support Andrew and ourselves. Finally, we have the right outcome and the boys will have a more secure long term future.”

Neil Walls
Family Law & Residential Conveyancing

“Gilson helped me understand the best way of getting these three pieces of work done. Very approachable and friendly staff and was very flexible and understanding of my needs as a client. Were very patient with me when I was struggling to understand the legal jargon. Would confidently use Gilson Gray’s services again.”

Anonymous
Family Law

“I have always found Denise Laverty to be an exceptional lawyer… on the basis of her professional legal excellence.”

Family Law Testimonial

Firstly I want to say a heartfelt thank you for your support over the last few weeks. I’m aware that your first duty is to the court, but I could not have done what I needed to do recently without your calm and authoritative counsel. You gave me the freedom to make my own decisions. I’m also aware that you and your team worked extremely hard to prepare me for court at very short notice.

Family Law Testimonial

Denise has consistently provided well balanced expert advice, throughout a long drawn out divorce and custody case. Denise’s in depth knowledge and experience of both Scottish and English Divorce law, has guided me through a very difficult period in my life. Her reasoned approach, often tempering my naturally emotional reaction to events, was always well timed and well placed, hindsight proving her judgement correct on all occasions.