SCOTLAND Law and Practice Contributed by: Ciara Wilson, Gillian Crandles and Lauren McDonach, Turcan Connell
Identification of Assets There is a duty of full disclosure on the parties, and the court can enforce disclosure in the event of non-compliance by a variety of means, includ - ing against third parties Property Regimes Property regimes do exist in Scotland. See the discussion in “Court’s Approach”. Trusts The courts in Scotland recognise trusts. Prop - erty held in trust is owned by the trustees and will generally be excluded from the value of the matrimonial property where one party is the sett - lor or beneficiary. Arguments can nonetheless be advanced that an interest in a trust is matrimo - nial property and/or is available as a resource. Transfers into trust can be set aside where they have been made for the purpose of defeating the other party’s claim. There is no concept of the constructive or resulting trust in Scots law as is known in some common law countries. 2.4 Spousal Maintenance There is a strong emphasis on achieving a finan - cial clean break. Awards of periodical allowance (post-divorce support) are the exception rather than the norm, and they will only be awarded if a capital sum or property transfer would be inappropriate or insufficient. In all but the most extreme circumstances, orders for periodical allowance are limited to a maximum period of three years from divorce. Spouses owe an obligation of maintenance (known as aliment) to each other while they are married. The amount is determined by reference to the needs and resources of each party. The obligation subsists only until divorce is granted.
Interim Maintenance Following the breakdown of a marriage, a party can apply for interim maintenance pending the final outcome. Ongoing Maintenance See the foregoing paragraphs regarding ongoing maintenance. 2.5 Prenuptial and Postnuptial Agreements Marital (nuptial) agreements have long been con - sidered to be enforceable in Scotland. A court will only interfere with a validly executed agree - ment if, at the time the agreement was entered into, the circumstances were such that it was not fair and reasonable. There is neither need for specific provision to be made for either spouse, nor for the terms of the agreement to bear any reference to the orders a court would usually make upon separation. The opportunity to take legal advice, the extent of disclosure, and the time afforded to the parties to consider the implications of the agreement are all factors in determining the enforceability of nuptial agreements. The position should be the same in the case of a foreign nuptial agreement being relied on in a Scottish court. Key Case Law Key case law includes: • C v M 2021 SLT (Sh Ct) 319; • Bradley v Bradley 2018 SC (SAC) 7; and • Gillon v Gillon (no3) 1995 SLT 678. 2.6 Cohabitation Division of Assets for Unmarried Couples The Family Law (Scotland) Act 2006 (the “2006 Act”) gives rights to unmarried couples to bring claims against each other within one year of
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