A recent divorce case in England has hit the headlines on
account of its rather unusual facts:
http://www.bbc.co.uk/news/uk-england-london-13392591
The case highlights a difference in the way inheritances are
treated north and south of the border. Here, we take a look at the
way in which inheritances are treated upon separation or divorce in
Scotland:
K v L - the English approach
Although inheritances may be ring-fenced in England, judges have
a wide discretion. Whether or not an inheritance will be brought
into account will depend on an assessment of the assets and needs
of the parties.
How does Scots law treat inheritance on divorce and
separation?
In Scotland, assets inherited during the marriage are excluded
from "the pot" of matrimonial property to be divided between the
parties. If, however, inherited assets change form during the
marriage, for example if inherited money is used to purchase a
house or other assets prior to separation, then the item or items
acquired will become matrimonial property and may be subject to a
financial claim by the other spouse on divorce.
In the event of "conversion" of inheritance into matrimonial
property, arguments can be advanced whereby credit is sought for
the original inheritance. How much credit, if any, is given is
ultimately down to the discretion of a court.
How would K v L have been decided in
Scotland?
The assets inherited by the wife in K v L were share
certificates, and remained in the same form throughout the course
of the marriage. If the case had come before a Scottish court, it
is likely that the inheritance would have been excluded from the
calculation of matrimonial property and that the husband would have
had no claim on these very valuable assets.
Post-nuptial agreements
If you are concerned about protecting an inheritance you have
received before or during a marriage, you may not wish to wait
until difficulties arise in the marriage. A carefully worded
post-nuptial agreement can safeguard inherited assets.
Simpson & Marwick's family law team can assist you in
putting such an agreement in place.
Call our specialist team now for advice on
inheritance, divorce/separation, post-nuptial agreements and all
areas of Family Law.
