The scene in Love Actually where Emma Thomson’s character receives a Joni Mitchell CD for Christmas is heart-breaking. Shortly before she had discovered an expensive necklace in her husband’s pocket and is faced with the realisation that he is buying expensive and thoughtful gifts for another woman and not for her.
Sadly, it is not uncommon to discover that a partner may be spending their money on someone they have been having an extra-marital relationship with. A reduction in the matrimonial property due to lavish spending on hotels, gifts and other items for the paramour can lead, quite rightly, to feelings of injustice and of unfairness.
If a spouse has spent considerable sums on their paramour, it is arguable that should be taken into account when assessing what an overall fair sharing of the matrimonial property will be.
In Scotland, the law provides that the matrimonial property at the date of separation should be shared fairly between the parties. A fair sharing starts off as an equal sharing, although there are a number of ‘special circumstances’ that may justify the matrimonial property being split in unequal proportions.
One of the special circumstances contained with the legislation is ‘any destruction, dissipation or alienation of property by either party.’
That means that if a spouse has spent considerable sums on their paramour, it is arguable that should be taken into account when assessing what an overall fair sharing of the matrimonial property will be.
The spending would have to be extreme and in excess of what was normal for that couple. It would also have to carry with it an adverse impact on the resources or living standards of those dependent upon the resources dissipated. A few nights in a cheap Travelodge is unlikely to be sufficient!
If a spouse has deliberately reduced their wealth, perhaps by transferring assets to another, that could be taken into account also.
The law relating to financial provision on divorce in Scotland is not fault based. Therefore, in assessing what amounts to a fair share of the matrimonial property, account should not be taken of the way in which either of the spouses conduct themselves. The fact that someone has had an affair does not justify an unequal sharing of the matrimonial property.
However, the law does provide an exception. Conduct can be taken into account if it has adversely affected the spouses’ financial resources. A spouse squandering money on an extravagant lifestyle could, for example, find that their conduct is considered by the court in determining any financial settlement.
There are of course a number of ways that assets could be destroyed, dissipated or alienated where there is no paramour involved. Deliberately destroying assets, making over generous gifts to others and donations may give rise to an allegation of destroying, dissipating or alienating assets. What is important is that there is a waste or loss of matrimonial funds which has not been replaced.
Similarly, relevant conduct may not necessarily relate to an affair either. In one case, a husband’s excessive drinking was relevant when it had an adverse impact on the wife’s boarding house business. Spending excessive sums on gambling would also be relevant. Again, what is significant is that the conduct has negatively impacted upon the couples financial resources.
Every case will turn on its own facts and circumstances. Therefore, if you are in any doubt – keep a note of irregularities and seek early advice.
