When couples separate or divorce in Scotland, one of the most important questions is: what counts as matrimonial property? At XK Family Law Solicitors, we are often asked whether income earned by either spouse during the marriage is automatically included.
The answer is not exactly. Let’s take a look.
What the Law Says
The definition of matrimonial property is found in section 10(4) of the Family Law (Scotland) Act 1985. It covers:
- Property acquired before the marriage for use as the family home or its furniture.
- Property acquired during the marriage and before separation (the “relevant date”).
The “relevant date” (section 10(3)) is:
- the date of separation, or
- the date when divorce papers are served – whichever comes first.
Does Income Count as Matrimonial Property?
- Income itself is not automatically matrimonial property.
- What matters is what happens to that income.
If income is used to buy or build up assets during the marriage, then those assets are matrimonial property.
If income is spent and no property remains at the relevant date, it is not part of the matrimonial property pool.
Examples
- Salary paid into a savings account → the savings are matrimonial property.
- Salary used to buy a family car → the car is matrimonial property.
- Salary spent on weekly groceries → no property remains at Relevant Date, so not matrimonial property.
- Inheritance received during marriage → excluded by law, unless it was converted into a family home.
Important Exclusions
The law specifically excludes certain assets even if received during the marriage:
- Gifts from third parties
- Inheritances
- Property acquired before marriage (unless bought as the family home)
Case Law
Scottish courts have reinforced these rules:
- Jacques v Jacques 1997 SC (HL) 20 – matrimonial property is to be assessed at the relevant date.
- Wallis v Wallis 1993 SC (HL) 49 – property values are fixed at separation, regardless if the values change later.
- Whittome v Whittome (No 1) 1994 SLT 114 – inherited assets are excluded, even if realised during marriage.
Plain English Summary
- Income is not automatically matrimonial property.
- Only the assets, savings or investments created from that income and still existing at separation are matrimonial property (which effectively encompasses all income… even if unspent (saved), unless spent on daily outgoings.
- Day-to-day earnings spent on living costs do not count.
How XK Family Law Can Help
Understanding what is and isn’t matrimonial property is crucial when dividing assets on divorce or separation. At XK Family Law Solicitors in Aberdeen, we provide clear, practical advice tailored to your situation.
Ready to discuss your case?
Email XK Family Law Solicitors in Aberdeen at:
info@xksolicitors.co.uk
Our website articles are not legal advice. We accept no responsibility for use of this information.
For advice on your specific circumstances, contact XK Family Law Solicitors Aberdeen directly.