📘 Factors the Court Considers in Divorce Financial Settlements

When a couple separates or divorces in Scotland, the court doesn’t just divide property — it also looks at the wider financial circumstances.
Section 11 of the Family Law (Scotland) Act 1985 sets out exactly what the court must consider when applying the principles from Section 9 (like fairness, needs, and disadvantage).

When applying the principles set out in section 9 of the Family Law (Scotland) Act 1985 the provisions in section 11 of the act will have effect as outlined below.

🔍 Overview: What Does the Court Actually Do?

The court doesn’t apply a “one size fits all” rule. It looks at:

• Economic fairness between both parties.
• Children’s needs.
• One party’s dependency on the other.
• Future plans, health, and finances.

Let’s break it down 👇

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💼 1. Economic Advantage or Disadvantage (Section 9(1)(b)).

👥 The court asks:

• Has one person gained more financially from the relationship?
• Has the other person lost opportunities (e.g., stopped working to care for children)?
• Can that imbalance be fixed by sharing property or another form of financial support?

⚖️ The goal is to level the playing field after separation.

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👶 2. Childcare Responsibilities (Section 9(1)(c)).

If one parent has more responsibility for the children, the court looks at:

• 🍼 Any child maintenance already agreed or ordered.
• 🕒 Lost earnings due to childcare.
• 🏡 Need for a suitable home.
• 🧒 Child’s age, health & educational needs.
• 💷 Childcare costs and availability.
• 💰 Financial position of both parents.
• 🔎 Any other relevant facts.

📌 The court ensures children’s needs come first – especially when they affect one parent’s income or living situation.

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🧍 3. Economic Dependence (Section 9(1)(d))

If one person has been financially dependent on the other (e.g., due to childrearing, illness, or lack of job experience), the court looks at:

• 🎂 Their age and health.
• 🧠 Their ability to earn money.
• ⌛ How long they were dependent before divorce.
• 🎓 Any plans for retraining or education.
• 💷 The financial position of both parties.

💬 The goal: help them become financially independent again, not necessarily maintain the same lifestyle.

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💸 4. Adjustment to Loss of Support (Section 9(1)(e)).

This is about helping someone adjust after losing access to their spouse’s income. The court considers:

• 🎂 Age and health.
• ⏳ How long the marriage or civil partnership lasted.
• 🏠 The standard of living during the relationship.
• 💷 Financial needs and resources of both people.

📅 This support is usually short-term and designed to help with the transition, not long-term maintenance.

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🙋‍♂️ 5. Other People in the Household

If the person paying financial support is already helping someone else (like a new partner or elderly parent), the court may take that into account — but only if it’s fair to do so.

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🚫 6. Misconduct or Bad Behaviour

Courts in Scotland don’t normally punish bad behaviour (like affairs) when deciding on finances.

But there are two exceptions:

• 💣 If someone’s behaviour damaged the financial situation (e.g., gambling away savings).
• ⚖️ If ignoring their conduct would be grossly unfair.

✅ In Summary: Section 11 is about Fairness Based on the Real Life Circumstances of the parties.

Scottish courts look at the real financial impact of a relationship ending, not just what each person owns. Section 11 makes sure the law:

• Recognises child care responsibilities 👶
• Accounts for economic imbalance 💼
• Supports short-term adjustment 💸
• Aims for fairness, not punishment ⚖️

👩‍⚖️ Need Advice About Divorce or Separation?

At XK Family Law Solicitors, we specialise in fair financial settlements under Scottish law. Whether you’re dividing property, negotiating maintenance, or supporting children — we’re here to guide you.

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