Matrimonial Property is defined in s10 of the Family Law (Scotland) Act 1985 and includes:
All of the property belonging to the parties, or either of them at the relevant date which was acquired by them either:
- Before the marriage for use by them as a family home or as furniture or plenishings for that home; or
- During the marriage but before the relevant date.
Section 10(4A) defines the partnership property of civil partners in similar terms.
If an asset falls within the categories of property set out in these definitions, then it will fall to be shared fairly between the parties in terms of s.9(1)(a).
- Gifts or inheritances from third parties are expressly excluded.
- Property acquired by the parties prior to the marriage is excluded unless it was acquired with the intention that it be for family use.
- Similarly, property acquired by either party after the relevant date is excluded.
What constitutes matrimonial property?
The only property acquired before the marriage which can constitute matrimonial property is the family home or its furniture and plenishings. Other property e.g. a business acquired before the marriage cannot constitute matrimonial property.
A house purchased prior to the marriage can only be matrimonial property if it was purchased with the intention that it be used as a family home by the purchaser and the other party.
There is, under s25 a presumption that household goods are jointly owned (with the exception of money, vehicles or household animals). Nonetheless actual ownership of goods is generally irrelevant to the concept of matrimonial property. All property acquired by either party during the marriage and before the relevant date is prima facie matrimonial property (with the exception of third parties gifts).
For example, if the wife owns jewellery valued at £10,000, and the husband owns a car valued at £20,000, if they are acquired during the marriage and before the relevant date they both fall to be matrimonial property. Cars, jewellery, money, investments and pensions are all matrimonial property, even if owned by one party to the marriage, as long as they are acquired during the marriage and before the relevant date.
Gifts from third parties and inheritances are excluded, however gifts between spouses or civil partners are included in the calculation of matrimonial property.
Where a gift from a third party or an inheritance increases in value during the marriage, the increase does not constitute matrimonial property. However, if a gift or inheritance from a third party is used to buy property during the marriage, the property purchased becomes matrimonial property.
Damages paid as a result of a delict suffered during the marriage but before the relevant date are matrimonial property, even where the payment is received after the relevant date. Redundancy payments made prior to the relevant date are classed as matrimonial property, payments made after the relevant date are not. Tax rebates refunded after the relevant date fall to be matrimonial property in respect of the amount corresponding to income earned during the marriage prior to the relevant date.
Rights and interests in life policies or pensions of each party are matrimonial property. Normally a cash equivalent transfer value of such policies valued at the relevant date should be obtained.
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