On divorce in Scotland, one of the most important questions is how their property and finances will be divided. The starting point is the principle of fair sharing of matrimonial property under the Family Law (Scotland) Act 1985. However, not all assets fall into the category of “matrimonial property”. Certain types of property are specifically excluded and are known as non-matrimonial property.
Understanding the distinction between matrimonial and non-matrimonial property is crucial, particularly where issues such as inheritance, gifts, or pre-marriage assets are involved.
What is Matrimonial Property?
Under Section 10(4) of the Family Law (Scotland) Act 1985, matrimonial property is defined as:
- All property belonging to either or both spouses at the date of separation, which was acquired during the marriage (but before separation).
This includes assets such as the family home, pensions built up during the marriage, savings, investments, and jointly owned property (Essentially, all assets acquired during the marriage and surviving at the relevant date).
What is Non-Matrimonial Property?
The same section of the 1985 Act excludes certain categories of property from division on divorce. These include:
- Property acquired before the date of marriage (other than heritable property acquired for the purpose of being used as a matrimonial home).
- Property acquired by gift or inheritance from a third party, whenever received.
- Property acquired after the date of separation.
This means that, in principle, if one spouse receives an inheritance during the marriage, it will be ring-fenced and not subject to division.
Can Non-Matrimonial Property Still Be Relevant?
Although non-matrimonial property is excluded from division, it can still play an important role in financial provision on divorce.
1. Resources of the Parties
Under Section 8(2) of the 1985 Act, the court must consider the resources of the parties when making any order. Even if property is excluded as non-matrimonial, it is still a resource which may be relevant when deciding whether a spouse can afford to make a financial award.
2. Principles of Financial Provision
The court applies the principles set out in Section 9 of the 1985 Act, including:
- s 9(1)(a) – fair sharing of matrimonial property.
- s 9(1)(b) – fair account of economic advantage/disadvantage.
- s 9(1)(c) – relief of serious financial hardship.
- s 9(1)(d) – fair account of the economic burden of caring for a child.
While non-matrimonial property is excluded from the calculation under
s9(1)(a), it can be considered under the other principles, especially where one spouse would otherwise face serious financial hardship or where there are children or if there is someone with significant care needs.
Key Case Law on Non-Matrimonial Property
Several leading Scottish cases provide guidance on how non-matrimonial assets are treated:
- Jacques v Jacques 1997 SC (HL) 20 – confirmed that inheritance is excluded from matrimonial property, but the court must still consider the overall resources of the parties when making financial orders.
- Whittome v Whittome (No.1) 1994 SCLR 1148 – emphasised that inherited wealth remains ring-fenced, but it does not disappear from view when assessing resources.
- Harris v Harris 1996 SCLR 1001 – established that non-matrimonial assets may be relevant where one spouse would otherwise suffer serious financial hardship.
- C v C (Financial Provision: Sharing of Resources) 2002 SLT 579 – highlighted that the court has discretion to consider non-matrimonial property when making orders that are fair and reasonable in the circumstances.
- CM v STS 2008 Fam LR 5 – demonstrated the court’s willingness to take into account the economic burden of caring for a severely disabled child, even where the necessary funds would need to come from non-matrimonial resources.
Practical Implications
For divorcing couples in Scotland, this means:
- You cannot normally claim a share of your spouse’s inheritance or premarital assets.
- However, these assets can still be relevant if the court needs to make a capital award or periodical allowance to relieve financial hardship for your ex, or provide for your children.
- The existence of substantial non-matrimonial property can therefore influence the court’s approach to fairness, even if the property is technically excluded from division.
Can you make an economic advantage / economic disadvantage claim against non-matrimonial property?
This principle of economic advantage / economic disadvantage is about correcting imbalance – not about sharing all property equally. A spouse cannot “share” in non-matrimonial inheritance directly, but they could possibly claim that the retention of inheritance has created an economic imbalance, and seek compensation under s 9(1)(b).
Suppose one spouse retains their inheritance intact in investments, while the other gives up employment to care for children.
The non-earning spouse suffers economic disadvantage (loss of earnings and pension) in the interests of the family, while the other spouse preserves and grows their wealth.
That imbalance may justify a compensatory award under s 9(1)(b).
Conclusion
The distinction between matrimonial and non-matrimonial property is a cornerstone of Scottish divorce law. While inheritance and gifted property are normally excluded from division, the court is not blind to their existence. Under the Family Law (Scotland) Act 1985 and supported by case law, such property may be considered as part of a spouse’s overall resources, especially where fairness, hardship, or child care responsibilities are at stake.
Expert Family Law Advice in Scotland
At XK Family Law Solicitors Aberdeen, we provide clear, practical advice on the division of assets in divorce, including the complex area of non-matrimonial property. If you are concerned about how inheritance or gifted assets may be treated in your divorce, contact our experienced team today.
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