21 April 2014
In my practice, I have dealt regularly with Scottish divorce law in recent years, or at least with people who got married in Scotland, have Scottish nationality and came to the Netherlands as expats.
The marriage falls apart in the Netherlands and one of the parties wants to file for divorce here. This is possible and, in such cases, knowledge of Scottish matrimonial property law is important.
If the parties are married in community of property, there is a lot of overlap between Scottish matrimonial property law and the Dutch community property regime. People who come to the Netherlands and have close ties with Scotland often have property or other assets there. They are posted to the Netherlands by their employer without there being any question, then or in future, of breaking their ties with Scotland. Often, these expats intend to stay for a few years then return to Scotland.
Given that the expats who come to live in the Netherlands have their habitual residence in the Netherlands, the petition for divorce can be filed here and maintenance agreed for the former partner and children. It is, of course, also possible to file for divorce in Scotland, but in reality people frequently file for divorce in the country in which they currently reside and – at our practice – that country is the Netherlands.
In principle (I will leave aside the exceptions here), the Dutch court will have to apply Scottish matrimonial property law, as enshrined in The Family Law (Scotland) Act 1985.
Under Scottish matrimonial property law, the “relevant date” and the assets that make up the matrimonial property are the crucial factors. The relevant date is the point of reference for determining the size of the community of property, i.e. what the parties owned at a particular point in time. That point in time is the relevant date and, basically, is the date on which the parties actually start living apart permanently. Depending on the circumstances in the case in question, trial separation periods are generally disregarded for these purposes.
When seeking to determine what the spouses owned on the relevant date, it is not just the components that are relevant, but also their value on the relevant date.
The legal system in Scotland involves a system of separation of goods, which means that the marriage has no implications for the spouses’ assets. Whatever each spouse owned prior to the marriage remains theirs when the marriage has ended.
There is one possible exception to this, and that is the marital home. This may have been purchased by the husband, with a view to the forthcoming marriage and with the intention of living there with his future family. Even though this home belongs to the husband, in certain circumstances it may be deemed to form part of the matrimonial property and its value will have to be shared between the spouses.
Everything that the spouses owned when the marriage ended and that was acquired during the marriage forms part of their matrimonial property, with the exception of gifts or acquisitions by way of inheritance from third parties and the parties’ possessions prior to the marriage. The value of all those possessions must be shared equally between the spouses.
There is, however, one rule in Scottish matrimonial property law that does not exist in Dutch law, or at least not in matrimonial property law. The Scottish court may choose to ignore a transaction during the period of up to five years prior to the end of the marriage if it is established that the spouse who did not effect the transaction suffers financial detriment in the divorce as a consequence of the transaction.
Under Dutch law, this is an unusual stipulation which appears to be connected with our concept of a fraudulent conveyance. Basically, fraudulent conveyance is when a juristic act can be nullified if it is established that the act in question was entered into with the purpose of prejudicing other creditors or the outcome of the juristic act is that other creditors are prejudiced.
Each divorce must, of course, be assessed on its own merits and everything will depend on the specific circumstances of the couple concerned.
If you have any questions about this weblog or other personal and family law matters, please don’t hesitate to contact me.
This weblog was written in close consultation with Bianca Beekhuizen, Legal Assistant in the Family and Inheritance Law practice group.
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