When a couple divorce in Scotland, their lawyers work out how their ‘matrimonial property’ (or ‘matrimonial pot’) should be divided up. The matrimonial pot includes the assets they acquired during their marriage up until the date they separated (the ‘relevant date’).
Gifts or inheritance one spouse received from someone else during the marriage are excluded from the pot, as is property either spouse owned before they married. Deciding which assets should be included in the division of the matrimonial pot is usually straightforward, but real life can often be more complicated.
A good example of the challenges faced when calculating the value of matrimonial property on the relevant date is a personal injury (PI) claim. If you have a claim underway when you separate, is any settlement arising from that claim included in the matrimonial pot?
It depends on the nature of the claim. PI claims can take various forms such as loss of earnings, compensation for pain and suffering or long-term care costs for life-changing injuries. Some types of claims are included in a matrimonial pot when the claim is ongoing, but others are not.
In addition, the level of damages awarded in PI cases is variable and uncertain. So even when it is determined the claim should be included in the matrimonial pot. It is extremely difficult to put an exact value on that claim when calculating the financial settlement, as it can sometimes take years to settle complex PI claims.
There are no straightforward rules or answers, but if you are unlucky enough to be dealing with a PI claim and a divorce at the same time, it is important to tell your lawyer. The claim and the divorce may be very separate elements in your own life, but the PI claim could have significant implications for the divorce settlement.
It’s not a situation anyone wants to find themselves in, but it does happen: if it happens to you, your divorce lawyer must know.
