When a couple’s marriage or civil partnership breaks down, there is always a discussion about who gets what. There is a fundamental legal principle that matrimonial property should be divided fairly between the parties. However, Section 8 of the Family Law (Scotland) Act 1985 allows the parties to apply to the courts for a number of different orders, including a capital sum or a transfer of property order. This means that the parties may claim an uneven division of matrimonial property. To be successful, the party making the claim for an uneven division of matrimonial property must show that they have been economically disadvantaged whilst the other party has been economically advantaged. The basis for his is set down in Section 9 of the Family Law (Scotland) Act 1985. Indeed, this section starts off by saying “the net value of the matrimonial property should be shared fairly between the parties to the marriage”. However, the word “fairly” should not be mistaken for the word “equally”.
In practice, however, there are circumstances where one party might consider they have been economically disadvantaged whilst the other party has been economically advantaged. An example of this is in the case of Fox v Fox  SC STI 3.
In this case, Mr Fox raised divorce proceedings against his wife claiming, amongst other things, a capital sum because Mrs Fox had remained living in the house after the marriage broke up and as a result of that he had been economically disadvantaged. Mrs Fox rejected that argument saying that she had paid the mortgage during almost all of the time they had been separated so that meant her husband was not entitled to an uneven division of the matrimonial property because he had been economically advantaged because he had not contributed to the mortgage.
As with many of these cases, it turned on money. When Mr & Mrs Fox separated, Mr Fox moved out. He contributed to the mortgage for three months and then stopped. Mrs Fox then continued to make the full mortgage payments. In the meantime, Mr Fox rented a one-bedroom apartment in which he lived.
When the case was argued before the sheriff, Mrs Fox informed the court that she had paid £20,000 in mortgage payments since the parties were separated. As the mortgage was in joint names, Mr Fox should have contributed to the extent of one half of the payments which would have amounted to £10,000. Meantime, Mr Fox informed the court that he had paid around £12,000 (which included Council Tax and some other costs).
The sheriff considered that there was more or less an equalisation of economic advantage and disadvantage and rejected Mr Fox’s claim for a capital sum.
As you will have gleaned from this case, the question of whether one party is economically advantaged to the disadvantage of the other is not simple or straightforward. There must be a clear imbalance before an award of an unequal distribution can be made.
We have solicitors who have many years of experience dealing with family law matters and matrimonial property. When it comes to who gets the house, the answer is very much “it depends”! Each case rests on its merits and the final outcome will depend on the actual evidence rather than any whim of one party or the other.
If you are thinking about separating from your spouse or partner and would like to discuss your entitlement to matrimonial property, please get in touch.