Under s8(1) of the Family Law (Scotland) Act 1985, in an action for divorce, the court has the power to make one or more of the following orders:
- an order for the payment of a capital sum to him or her by the other party to the marriage;
- an order for the transfer of property to him or her by the other party to the marriage;
- an order for the making of a periodical allowance to him by the other party to the marriage
- a pension sharing order;
- an incidental order, usually concerning matrimonial property.
S8(2) of the Family Law (Scotland) Act 1985 provides that the court shall make such an order if it is justified by the principles set out in s9 of the Act and is reasonable having regard to the resources of the party.
The s9 Principles
In deciding what order is appropriate, the court shall apply the following principles:
- The net value of the matrimonial property shall be shared fairly between the parties;
- Fair account shall be taken of any economic advantage derived by either person from contributions of the other, or any economic disadvantage suffered by either person in the interests of the other, or of the family;
- The economic burden of caring for any children of the marriage (under 16) after divorce should be shared fairly between the parties;
- A person who has been dependent to a substantial degree on financial support from the other person should be awarded such financial provision as is reasonable to enable him to adjust, over a period of not more than three years from the date of decree of divorce or dissolution;
- A person who at the time of the divorce or dissolution seems likely to suffer serious financial hardship as a result of the divorce or dissolution should be awarded such financial provision as is reasonable to relieve him of hardship over a reasonable period.
In applying the s9 principles, the court will not take account of the conduct of either party unless that conduct has adversely affected the relevant financial resources, where there is substantial dependence or serious financial hardship or it would be manifestly inequitable to leave the conduct out of account.
Misconduct of either party is therefore usually irrelevant.
Reasonable with regard to the resources of the parties
The court has discretion to limit or reduce an award if the parties’ resources at the date of divorce make that award appear unreasonable. For example, where a party is prima facie entitled to a capital sum payment from his spouse, but by the date of divorce the spouse’s resources do not justify that level of payment, the court has discretion to reduce the capital sum due. This discretion does not however extend to increasing an award beyond that justified by the s9 principles.
To contact us for an appointment regarding financial provision on divorce or dissolution please call our family law specialist Colette Kerron 0141 332 0915 or fill out our online enquiry form.