Do you need to financially support a spouse or partner after separation or divorce?

What is the position in Scots law on financial support after separation or divorce? Well, in short, it really depends on the circumstances. Here, we look at Aliment, Periodical Allowance and Minutes of Agreement – three ways in which settlement terms between couples can be given the protection of the law.

The case of Mills v Mills hit the headlines earlier this year following the Supreme Court issuing their judgment on 18 July 2018. This was an Appeal from the Court of Appeal in England which considered the situation of long term financial support after divorce and the ability to vary that award several years after it was made.

Although this is a case which arose south of the Border, as it is a judgment from the Supreme Court the decision does have some relevance to play in Scotland, as the Supreme Court is also the final appeal court for civil cases in Scotland. This area of law is notably different in Scotland, with Scotland often being considered to be the less generous jurisdiction to deal with such matters. So what is the current position?

Quite often in the event of a separation, tensions between parting couples can be high for a number of reasons. In many situations one spouse may have been financially dependent upon the income and support of the other during the period of marriage or their partnership. When couples part, it creates uncertainty and potential for financial hardship to one of the couple. The law offers protection to couples in this situation which is known as Aliment.

What is Aliment?

Aliment is the legal term given to the obligation to provide such support as is reasonable in the circumstances which is owed between spouses or civil partners, but also from persons to a child who has been accepted as a child of their family.

How is the amount of Aliment calculated?

The amount of aliment that should be paid from one individual to another will be dependent upon the circumstances. However where a court is required to assess the amount, the Court would give regard to:

1. The needs and resources of both parties. This would include income, expenditure and any capital resources such as savings or readily available assets with a value.
2. The earning capacities of both parties.
3. Generally all of the circumstances.

It should be noted that the behaviour of either party or the reason for the parties’ separation will not be taken into account unless it would be manifestly inequitable to leave it out of account.

For how long is aliment payable?

Aliment is usually payable until such time as the parties divorce or dissolve their civil partnership. It may however be varied at any stage by either party in the event of a material change in circumstance. If parties are making arrangements themselves without the involvement of a Court, in Scotland individuals are free to make such contractual obligations or agreements with one another as they wish. This could result in individuals agreeing more or less generous amounts than what a court may consider reasonable.

Is Aliment available to cohabitants?

No. Aliment is a legal obligation which only exists between married couples, civil partners, or to a child by a person who has accepted them into their family. Cohabitants do not have the equivalent legal protection of aliment in the event of a separation. It is, however, possible for cohabitants to seek an interim payment from their former partner in the event they are seeking a capital sum as part of their separation, which a court could have sympathy with if they are suffering some form of financial hardship or have experienced dependency.

Periodical Allowance

Periodical Allowance is an order against one party to pay a regular income to the other after divorce or dissolution. It is an award which can provide a person with an income for certain potential future financial needs. This differs from aliment, as alimentary payments cease once a divorce or dissolution is granted. In Scotland, the law aims to achieve a clean financial break between separating spouses or partners upon divorce or dissolution. However it is not always possible to achieve a clean break on divorce or dissolution, which could be due to reasons such as a lack of available capital to do so.

Periodical allowance can be awarded up to a period of three years from divorce, or longer if it is necessary to relieve one party from serious financial hardship.

Examples of situations where payments of periodical allowance after a divorce or dissolution can be deemed appropriate include:

1. Where a person has been dependent to a substantial degree on the financial support of their spouse or civil partner, they should be awarded such financial provision as is reasonable to enable them to adjust over a period of not more than three years from the date of divorce or dissolution of the civil partnership.
2. Where a person who at the time of divorce or dissolution seems likely to suffer serious financial hardship as a result of the divorce, they should be awarded such financial provision as is reasonable to relieve them of hardship over a reasonable period.

When deciding whether periodical allowance should be awarded, the Court would only make an award if it was justified under:

1. The economic burden of caring for a child
2. Adjustment to loss of support; and
3. The relief of serious financial hardship.

The Court is not to make an order for periodical allowance unless it is satisfied that an order for payment of a capital lump sum payment or transfer of property or pension sharing would not be appropriate or sufficient. It would therefore really be used as a last resort.

Agreements

Although the law outlines strict rules outlining when Aliment and Periodical Allowance may be used, outwith the Court individuals are free to agree such settlement terms as they wish. This could be payments of aliment or periodical allowance in situations where the court may not have necessarily reached a similar conclusion. If individuals have agreed matters themselves outwith a Court, they would enter a written contract commonly referred to as a Minute of Agreement. A Minute of Agreement is a legal agreement and written contract entered by parties who have reached a consensus and wish to record the terms of their agreement within a binding document. Once the agreement is signed and witnessed, it becomes a legally binding document without having to be approved by a Court.

Can I enforce an order of Aliment or the terms of an Agreement

Once a Court Order is granted or a Minute of Agreement is registered they both become legally binding. This means that in the event that the terms of the Order or Agreement have not been adhered to, steps can be taken to enforce the terms of it. If, for example, the Order or Agreement provides for payment by one party to the other, and payment is not received, Sheriff Officers can be used to recover payment by way of diligence or debt enforcement. This could be for example by way of an earnings arrestment, bank account arrestment or seizure of moveable property.

Get in touch

To find out more about the use of Aliment or Periodical Allowance in divorce or dissolution of a civil partnership, contact a member of our family law team at Harper Macleod. We are highly experienced in negotiating settlements involving aliment and periodical allowance.