5 What are the consequences of divorce/separation?

5.1. How is the property (rights in rem) divided?

England/Wales

Upon divorce the courts are given a very wide discretion to make a wide range of orders (referred to as 'ancillary relief'), including a reallocation or even sale of property, putting assets on trust, lump sum payments, periodical payments, orders regarding pensions etc. (sections 21 ff Matrimonial Causes Act 1973). The statute in section 25 lists 'matters to which court is to have regard in deciding how to exercise its powers', and among those first consideration is to be given to the welfare of the children of the family. The ultimate aim of ancillary relief is to achieve a fair outcome. In the case of Miller v. Miller; McFarlane v. McFarlane [2006] UKHL 24 the House of Lords identified three 'strands' of fairness, namely needs (of the parties and their children), compensation (of relationship-generated disadvantages) and sharing (of assets). Since in many, if not most, cases the needs exceed the assets, needs will often be the determining factor and therefore in many cases the other 'strands' of fairness do not play an important role, or indeed any role at all.

That said, in the same case the lead speeches seemed to indicate that certain groups of assets (particularly pre-marital, inherited and assets received as gift, or 'non-matrimonial assets') should be treated differently from the 'fruits of joint labour' and the matrimonial home with regard to the sharing upon divorce. But it was also held that the longer the relationship lasted, the less important that distinction should be.

Scotland

The spouses can agree on the division. If they cannot agree, either can claim financial provision on divorce on the basis of the principles laid down in section 9 of the Family Law (Scotland) Act 1985. One of those principles is that the net value of the "matrimonial property" as defined (i.e. the property acquired by the spouses, other than by gift or succession, during the marriage but before the date when they separated, and including any house bought with a view to marriage; section 10 Family Law (Scotland) Act 1985) is to be shared fairly between the spouses (section 9(1)(a) Family Law (Scotland) Act 1985). Fair sharing means that the net value will normally be divided equally between them but the court has power to depart from strict equality in special circumstances (see section 10(6) Family Law (Scotland) Act 1985).

5.2. Who is liable for existing debts after the divorce/separation?

England/Wales

See answer to 2.6.

Scotland

The spouse who was liable before remains liable afterwards.

5.3. Does one spouse have a claim to an equalisation payment?

England/Wales

No, but see answer to 5.1.

Scotland

The effect of the principle of fair sharing of the net value of matrimonial property on divorce is that one spouse may claim a payment from the other to bring about equality.