If you and your spouse are considering separating, you will no doubt be thinking about your future finances. This can cause a lot of anxiety particularly if you have been financially dependent on your partner over the course of your marriage and you may be concerned about how you will support yourself going forward.
This fear has been heightened for a lot of people given the economic impact the recent pandemic has had on many people.
In Scotland, there are two different forms of spousal aliment depending on whether or not you are still married to your ex-partner.
Under Scots law, if you are married or in a civil partnership, both you and your partner have a legal obligation to support each other financially. This is known as spousal aliment. It applies for as long as the parties are married and continues after the couple have separated until the date they become divorced.
In order to determine whether one party should pay aliment to their spouse or civil partner you must consider the needs and resources of both parties. In practice, this is done by both parties producing a schedule containing details of their income together with their expenditure. Only if one party has a monthly deficit, and the other party has a monthly surplus, will a payment of spousal aliment be due.
When determining whether spousal aliment should be paid by either party, the law also requires you to consider the earning capacity of each of the parties together with, more generally, the circumstances of the case. In Scotland, it is common for the financially stronger party to pay aliment to their ex-partner until an overall agreement has been reached.
After you and your ex-partner are divorced, neither you nor your partner have a duty to one another in terms of spousal aliment. Instead, if there is to be any maintenance between the parties, it is known as periodical allowance.
Once a divorce, or dissolution of a civil partnership, has been granted, Scots law aims to provide a clean break between the parties. This means that, as far as possible, there should be no ongoing financial ties between the parties after they are divorced. To that end the court will only consider periodical allowance if alternative options are insufficient to allow the financially weaker partner to adjust to their new circumstances. It is also important to note that, unless there are exceptional circumstances in your case, the court can only award periodical allowance up to a maximum of three years after divorce.
It is best practice to try to reach an agreement with your ex-partner as far as possible. This can be done directly between you if you feel comfortable in doing so or with the involvement of your respective solicitors. In any event, once an agreement has been reached, you should contact your family law solicitor in order to have the agreement put into writing. This will provide certainty and security to both parties going forward as once your agreement has been signed it becomes a legally binding document.
If you and your ex-partner are unable to reach an agreement there is of course the option of raising a court action and asking either a Sheriff or a Judge to determine the issues in dispute. However, this is not only time consuming and expensive, but it is also stressful and is it is not conducive to any future relationship you may have with your ex-partner.
Prior to considering whether a court action is necessary, you should also consider the other types of dispute resolution methods available to you. At BTO Solicitors our team are trained in mediation, collaboration and arbitration. If you wish to discuss your entitlement to spousal aliment, periodical allowance and the most appropriate dispute resolution method for your circumstances, please contact a member of our family law team.