It has been reported that Russell Crowe is to commemorate the end of his marriage to Danielle Spencer by auctioning 227 of their possessions, including two life size prop horses used in the film ‘Gladiator’ and Captain Jack Aubrey’s number 2 ‘dress blues’ worn in ‘Master and Commander’. It is estimated that he will make $1million dollars from the auction.
The circumstances which have led to this unusual approach are unclear, and the remainder of the financial settlement is unknown. Few conventional couples would choose to air the breakdown of their relationship and the extent of their assets so publically. The aim of divorce lawyers in Scotland is generally to minimise conflict and preserve civil relations, especially if children are involved. A careful and measured approach to the sharing of property and liabilities is to be encouraged.
If the problems arising from the breakdown of a marriage or civil partnership are resolved here in Scotland, the extent of the matrimonial or partnership property is first determined in order to calculate the total ‘matrimonial pot’ to be divided on divorce. ‘Matrimonial property’ means all assets and liabilities owned by the couple (either jointly or individually) as at the date on which they separated. These assets are only ‘matrimonial’ if they were acquired during the marriage. Assets which were owned by the couple prior to the marriage are not, therefore, taken into account, with the exception of a home (and associated contents) purchased prior to the marriage with the intention that it would be used by the family. Assets acquired after the date on which the couple separate are not ‘matrimonial property’. Similarly, any asset acquired by way of a gift from a third party or by way of inheritance received during the marriage, is not taken into account although there can be complexities if such assets are sold or invested. In that event, the new asset will become ‘matrimonial property’ but in those circumstances, it can be argued that account ought to be taken of the fact that such assets derived from non- matrimonial property in deciding how the value of the assets should be divided.
Although in Scotland we have a system of established and well recognised principles which govern the division of property on divorce the touchstone of which is equality and fairness, each case is different and there are often reasons why the general rule of equal divisions should be departed from.