Let me just first say that marriage should always be considered an institution that carries the weight of a life long commitment. Something that should never be entered into lightly and never be dissolved without good reason. The introduction of no-blame divorce can only ever be seen as a fantastic and pragmatic approach to the ending of the legal ties of a relationship. Its introduction was intended to remove acrimony and blame, allowing sensible couples, realising their relationship has come to a natural end to simply get on with their lives while maintaining the process where the split was driven by behaviour or action.
There are several aspects of the action of divorce to be considered. Clearly there is the relatively simple bit of getting the paperwork legally dissolving the marriage, allowing each person to get remarried for example, but also removing the legal protections that marriage gives in tax and financial matters.
Children play a significant part in the process, as they should, but can be weaponised. I believe we all have heard stories from family or friends regarding this, but in any instance the outcome for the child should be at the forefront of all decisions.
Then there is the matter of separating finances. While the law seems fairly straightforward there are a range of added complications wrapped around two concepts. A quick web search will show you something like this:
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Under Scottish law, specifically the Family Law (Scotland) Act 1985, matrimonial property is generally split on a 50/50 basis. This includes assets acquired during the marriage, but excludes inherited property, gifts from third parties, and pre-marriage assets. A “fair” division is the goal, which can mean an unequal split (e.g., 60/40 or 70/30) in special circumstances, such as financial misconduct, economic disadvantage, or non-matrimonial property contributions.
Key Principles of Asset Division in Scotland
The 50/50 Starting Point: The law assumes an equal split of all matrimonial property, which usually includes the family home, household goods, cars, savings, and pensions acquired after the date of marriage and before the “relevant date” of separation.
Matrimonial Property Definition: Covers all property acquired during the marriage up to the date of separation (the “relevant date”). It does not include assets owned before the marriage or inheritance/gifts received from third parties during the marriage, unless these were used to purchase a matrimonial home.
“Special Circumstances” for Unequal Splits: A departure from 50/50 can be justified, including:
Economic Advantage/Disadvantage: If one party sacrificed their career to care for children or a home, allowing the other to gain a higher income.
Non-Matrimonial Property: When one party used funds from an inheritance or pre-marriage savings to buy a joint asset.
Squandering Assets: If one partner has deliberately reduced or destroyed the value of marital assets.
Fair Sharing Requirement: The law aims for a fair share, which might involve one party receiving a larger share to avoid economic hardship or to reflect the cost of raising children.
Family Home: Even if the home was purchased before the marriage, it is generally considered part of the matrimonial pot if used as the family home.
So far so good. But from personal experience, then asking around, then researching case histories and literature one can see that the application of “principles” can be wooly. More importantly, once you drift off a 50/50 split then you need actuarial maths and critically the established method used by lawyers is linear and sometimes spectacularly wrong.
The cynical might note that, having never met a poor lawyer or actuary, this miscalculation is a kept secret. One that the stake holders and law makers have known about forever, but as chief beneficiaries of the financial outcome they remain quiet about it. When asking my lawyer about getting a proper actuarial analysis done on my situation I was told that there is only one actuary actively providing this service, its expensive, and they come back with a range of figures rather than a set number.
Now as a bit of a maths nerd I railed against this. To that end I did my own analysis and what I found really bothered me. Not just because it massively impacted my outcome, but because I could see that, while divorce rates are falling from c.13,000 in 1976 to c.7500 in 2023, using this flawed linear maths will to a greater or lesser extent depending on the length of the marriage, disadvantage the lower earner, unfortunately still usually the female partner.
To that end I’ve created some calculators and some examples just to show how bad this is. I’m hoping that this visual evidence can provide some traction in the legal community to change how they both approach the initial broad brush calculations (after all I have provided a calculator) and then the idea that some cases will require deeper analysis with an actuary that will produce one definitive sum, or at worst a narrow range.