In recent years, family lawyers at GMW lawyers have often dealt with Scottish divorce law, as their clients have Scottish nationality, got married in Scotland, and came to the Netherlands for work.
When a marriage falls apart in the Netherlands and one of the parties wants to file for divorce here, knowledge of Scottish marital property law is important.
Marriage in Scotland – divorce in the Netherlands
When the parties get married in community of property, meaning the property of the spouses is shared, there is a lot of overlap between Scottish marital property law and the Dutch so-called community property regime. People who come to the Netherlands with close ties with Scotland often have property or other assets there. They are posted in the Netherlands by their employer without there being any question of breaking their ties with Scotland. Often, these internationals intend to stay for a few years, then return to Scotland.
Because internationals who come to live in the Netherlands have their habitual residence here, they can file for divorce in the Netherlands.
Maintenance for the former partner and children can also be settled here. It is, of course, possible to file for divorce in Scotland, but in reality people frequently file for divorce in the country where they reside.
In principle (with several exceptions aside), in such cases, the Dutch court has to apply Scottish marital property law, as enshrined in The Family Law (Scotland) Act 1985. Under Scottish marital property law, the crucial factors are the “relevant date” as well as the assets that make up the marital property.
The relevant date is the date on which the parties start living apart permanently. 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. Depending on the circumstances in the case in question, the court generally disregards trial separation periods.
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.
Assets prior to and during marriage
Prior to marriage
The legal system in Scotland involves a system of separation of goods, which means that the marriage has no implications for the spouses’ assets. When the marriage has ended, whatever each spouse owned prior to the marriage remains theirs.
There is one possible exception to this, namely the marital home. The husband may have purchased the home, with the intention of living there with his future family. Even though the home belongs to the husband, in certain circumstances it may form part of the matrimonial property. In this case, the spouses divide the value of the home.
When a marriage ends, all possessions of the spouses acquired during the marriage form part of the matrimonial property. Gifts or acquisitions by way of inheritance from third parties are exceptions. Th spouses share the value of all the possessions equally.
Difference between the laws
There is, however, one rule in Scottish marital property law that does not exist in Dutch law, or at least not in marital property law. The Scottish court may choose to ignore a financial transaction of one of the spouses within five years prior to the end of the marriage. This is, when established that the spouse who did not effect the transaction suffers financial detriment during the divorce.
Under Dutch law, this is an unusual stipulation connected to the concept of fraudulent conveyance. Basically, fraudulent conveyance is when a juristic act can be declared invalid because it was entered into with the purpose of prejudicing creditors or the outcome of the act is that creditors are prejudiced.
What does this mean for your divorce?
Each divorce must, of course, be assessed on its own merits. Everything will depend on the specific circumstances of the couple concerned.
If you have any questions regarding this weblog or other legal family matters, please do not hesitate to contact us.
This weblog was written in close consultation with Bianca Beekhuizen, Legal Assistant in the Family and Inheritance Law practice group at GMW lawyers.
Susan studied Law at the Erasmus University Rotterdam. She has worked as a lawyer since 1986 and gained an immense amount of experience in dealing with the full range of matrimonial and separation issues in international divorces. Susan joined GMW lawyers in 2011 and is a member of the Family Mediators Association.
Susan is an expert in contested financial disputes both in and outside court. One of her key strengths is the ability to empower her clients so they can understand and take control of the process, and forward constructively, especially for the children’s sake. She further specialises in strongly contested residence, contact disputes and is experienced in dealing with the legal aspects of child abduction.
Susan frequently acts for parents whose children have been taken abroad illegally and assists in obtaining their return.