Where agreement cannot be reached between spouses, the catch 22 scenario of having to find money with which to meet the legal expense of pursuing financial claims has to be weighed up against the potential return that raising such a claim can deliver and, although a potentially expensive route, the cost associated with such a step does not always have to be an obstacle to getting the right outcome.
Most commonly, the remedies a court can award are:
For so long as a couple remain married to each other there is an obligation on one spouse to support a substantially financially dependent spouse. If there is a need for that payment and the other spouse has the resources from which to pay it. Scottish Law does afford the financially dependent spouse the right to raise proceedings and to seek Court Order against the paying spouse to ensure regular payments are made each month in support of that need. Although a change in either parties' financial circumstances can prompt an alteration to such a Court Order, such obligations are usually brought to an end by divorce when the qualifying status of being a spouse is ended.
On divorce a spouse can ask the court to make an order for a periodic payment similar to aliment known as "periodical allowance". Such payment can be made for a period of up to 3 years after divorce or, in some exceptional circumstances until death or remarriage.
The court has the power to order one spouse to make certain payments to the other party's household to meet a repair cost or to pay the mortgage on an on going basis. In certain circumstances the court can order the sale of property all in advance of the divorce itself.
The court can take steps to prevent property being alienated or dissipated in an effort to defeat another spouse claim for capital and this can prove very useful where one spouse is prepared to go some distance to defeat another spouses' claims.
Recovery of evidence
The court can afford one party the authority to recover information from third parties directly, most commonly banks, financial advisors, solicitors, discretionary trusts, investments or pensions information where the other party is suspected of secreting financial information.
The right to share in matrimonial assets is a well established one but one which can take many twists and turns. The nature of the particular asset may be difficult to understand or one which is not considered to be of immediate relevance such as a pension interest. In fact, such assets can prove to be highly valuable and in the absence of proper advice and securing a binding agreement or court order, can be lost to the other party once divorced.
It is not uncommon for these powers to be unused due to the lack of legal fee funding particularly in an era where legal aid is increasingly difficulty to secure. The fear of jumping on the runaway train of unpredictable fees can prove too much for many people.
At Morton Fraser we can talk to you about a number of options regarding fee funding whether by way of a litigation loan from a third party organisation or having clarity on what fees you will be charged at each step in the process, so that you have some predictability and can budget accordingly.