Is an Equal share always fair? 14th, August , 2019

There is a conventional wisdom that suggests that when married couples separate the matrimonial assets/ property should be split equally.

While that may be true in many cases, there can be situations where an equal share will not bring about a fair result.

The first thing to establish is the extent of the matrimonial assets.

In Scotland matrimonial property comprises of all the assets that have been acquired between the date of the marriage and the date of separation.

So that seems straightforward; anything bought before the marriage is ruled out and belongs to the person who made the purchase.

Except there is a massive exception.

If, before the marriage, a property is bought with the intention of it being a ‘family home’ then if the parties subsequently marry the property is regarded as a matrimonial asset.

Once the extent of the matrimonial assets have been determined then there are a range of ‘special circumstances’ which may justify an unequal division.

One of the most common of these circumstances is where one of the parties has received an inheritance and during the course of the marriage uses the monies to buy an asset of some kind.

Because that asset has been acquired during the course of the marriage it is matrimonial property but if there is a separation the person who received the inheritance can make  a ‘source of funds’ argument and ask for more than 50% of the assets.

If one party destroys, disposes of or dissipates the assets that could be another reason for an unequal split.

There are a range of these circumstances that might justify an unequal division.

So before committing to an equal share take expert  advice to make sure that the equal share that is being proposed is indeed fair.

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