Relationships break down for many reasons, and many divorces are no one’s ‘fault'. But sometimes the breakdown can appear quite one-sided, at least to the other partner. The family can be happy, to all intents and purposes, and then out of the blue comes an affair or an announcement the relationship’s over.
In such circumstances, the rejected spouse often expects the financial settlement to reflect that turn of events.
To their surprise, they’ll find this isn’t necessarily so. Scotland’s divorce laws are designed to ensure that the value of the matrimonial assets is shared fairly. The starting point is that a ‘fair’ share is an equal share, whatever the back story.
There are some exceptions to this, such as one partner’s ‘bad behaviour’ causing the matrimonial assets to be reduced significantly – for example, if they have gambled them away or misspent them. But in general, the reason for the breakdown is not reflected in the financial arrangements afterwards.
To many spouses, the lack of a punitive element may not seem like ‘fair’ sharing at all. They didn’t ask for the divorce to happen, or for the family’s assets to have to be split, so why should they be affected financially?
Though this seems tough, it’s the way the law operates. But the key thing to understand is that when the two spouses negotiate the financial settlement, they do have flexibility to come to any arrangement that works for both of them.
This could mean not sharing the assets exactly 50-50 if this enables both to move on more positively. It’s up to their lawyers to find an arrangement that works for them, and try to avoid asking the courts to decide.
Mediation or collaborative law approaches can be very helpful in managing divorce and financial settlements because they reduce the adversarial nature of the process and focus more on solutions. Both partners are more likely to get an outcome that seems more or less fair – emotionally as well as legally.
'Fault’ can affect the speed of the divorce process
Although ‘fault’ does not affect the financial provision, it can speed up the process of getting a divorce. Under the current system in Scotland, a couple have to live apart for a year or more before they can divorce and both have to agree to it. If one disagrees, they have to live apart for two years or more.
However, if one spouse has committed adultery or can be shown to have behaved unreasonably, there is no need to wait for a year. The other spouse can raise a divorce action immediately and get a quicker break.
