Family law negotiation
Relevant date 2010 – as SEPERATED seeking divorce.This post is sponsored by abogados de accidentes
Tim bought flat which was inherited BEFORE he met TINA, however he sold the flat and used £80,000 to pay a deposit on home which was £240,000 in 2007 & they moved in before Xmas 2007
In Mitchell v Mitchell 1995 – Inner house of Court of Session held that a house bought before marriage is treated as matrimonial property only if acquired with attention to marry for both parties.
Lord McLean observed that
“ any property acquired by parties during the marriage but before separation is matrimonial property even if purchased with funds which one of the parties acquired by way of gift or succession The funds themselves before their application in acquiring the property, would not under S10 be matrimonial property”
So Tim inherited the money and bought a flat. £80 K deposit
However, as he used money with intention to buy family home – it is now matrimonial property….
He financed whole thing she did some DIY work herself maintaining it.
[Welsh v Welsh 1993]
She gave up job to look after kids, awarded equal share ….
She moved out
Only have state pension
The basic state pension cannot be shared. The court cannot make a pension lump sum order under S12A of 1985 act
Furnishings divided by 2
Dible v Dible 1997 ?
Settlement for defamation we keep it all as after relevant date
McKenzie v McKenzie
In an action of divorce, the wife pursuer sought a transfer of property order in respect of the husband's share (worth about GBP 100,000) in the matrimonial home, a capital sum and a periodical allowance. The parties' capital resources comprised their home, the title to which was in their joint names, the pursuer's bookselling business, and the defender's pension. The defender had a substantial income but the pursuer a modest one.
Held, (1) that fairness would be achieved by treating the parties' assets as divided equally between them at the date of separation, and that this equality could be achieved by a payment by the defender to the pursuer of GBP 27,450; and (2) that since the pursuer was likely to suffer serious financial hardship without continuing financial support from the defender, a periodical allowance without limit of time should be awarded; and decree pronounced accordingly.
Cahill v Cahill 1998
In an action of divorce H, the husband, sought inter alia payment of a capital sum from W, the wife. After proof H was awarded a capital sum of GBP 32,040 and W appealed against that award. W argued that the sheriff had erred in allowing the late lodging of an inventory of the contents of the matrimonial home in accepting H's unsupported evidence as to the value of the matrimonial home, and in taking into account economic advantage gained by W after the dissolution of the marriage. W and her sister were joint owner of a cottage which was not matrimonial property. H had improved the cottage and W alone received rent from it after the parties separated.
Held, refusing the appeal, that (1) W had refused to allow valuation of the contents of the matrimonial home of which she had sole occupation. In those circumstance the sheriff could not be criticised for allowing the late production, omitting inappropriate items from the list and reducing the valuation of the remainder by one third, and (2) the improvements to the cottage had been carried out during the marriage, the economic advantage was therefore gained during the marriage although the benefit of that advantage was not realised until later.
In an action of divorce at the instance of a wife against her husband, payment of a capital sum and periodical allowance was sought by the wife. The parties had married in 1964 and separated in 1982. There were no children of the marriage. In 1983 the parties had entered into a minute of agreement whereby certain of the matrimonial assets were divided. The husband paid aliment to the wife at the rate of GBP 675 per month until June 1986 when he was made redundant. Thereafter he paid aliment at a reduced rate. By the time of the proof the value of one of the undivided assets, the defender's pension rights, had increased in value since separation. It was contended for the pursuer that the pension should be valued as at the date of the proof. It was also contended that the redundancy payment received by the defender in 1986 should be valued as being in part matrimonial property.
Held, that (1) a redundancy payment was a payment for loss of employment and not something towards which an employee contributed during his employment; it was of a different nature from a contributory pension or insurance payment, was not within contemplation at the time of the parties' separation and was therefore not to be taken into account in the valuation of matrimonial property; (2) it was clear throughout