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Divorce - source of funds and matrimonial property

7th August 2017

A recent decision regarding the source of funds used to acquire matrimonial property, and interesting comment upon military pension payments -JA -v- WA (2017 WL) 02672231

This was an action for divorce. The Pursuer, a former soldier, had benefited from gifts and inheritances received between marriage and separation. He also stated an argument with regard to wealth which he had accrued prior to marriage and brought to the marriage. He sought for three heritable properties to be sold, and for him to retain two thirds of the value of those properties, with the other matrimonial property being divided equally. After evidence, Lady Carmichael accepted the source of funds argument in relation to the Pursuer’s proven non-matrimonial wealth, and reached a compromise decision on the division of the assets, which balanced this argument against the needs of the Defender.

Our firm specialises in acting for military personnel and accordingly of particular interest to us in this case was Lady Carmichael’s treatment of a re-settlement commutation, and terminal grant, received when the Pursuer left the army. The whole value of the commutation was taken as matrimonial property despite the fact that the commutation was linked to the Pursuer’s pension and therefore parts of it had been accrued outwith marriage. Under Scottish matrimonial law only the value of the pension accrued between the date of marriage and date of separation (or date of deferment if earlier) is matrimonial property. This seems to run contrary to the decision reached on a similar issue in the case of G v G CSOH 32 from 2016. However no appeal has been marked and accordingly the issue remains unsettled in law at present.


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Divorce & Family Law Specialist Scotland- Alasdair Docwra