For those of us who have been at the coal face of family law for a substantial period, there comes an awareness of the need to adapt and learn in order to ensure that the needs of our clients are properly met. In recent times there have been huge developments in the law of cohabitation, new pathways to parenthood and a move towards alternative dispute resolution where relationships end. It is the diversity, coupled with the opportunity to engage with a range of individuals on a daily basis, that makes this area of the law so unique.
With the festive period firmly behind us, many of us will be packing away the presents we were given and will marvel at some of the more unusual gifts we have received. Likewise, whilst most of the separation/divorce cases we deal with will involve a predictable range of assets (house, bank accounts, vehicles, pensions), we are frequently advising clients who own a variety of unusual assets (and no, we are not referring to those strange slippers you received from Aunt Petunia).
Fishing
The fishing industry forms a significant part of our local economy in the North-east of Scotland and many of our clients are shareholders or partners in a business concerned with fishing. Complications can arise when it becomes apparent that the client was a shareholder or partner in the business prior to the marriage (the value of their interest in said business would not have been shareable with their spouse) but has subsequently changed the structure of the business (usually for tax purposes) during the marriage. The effect of this is that their interest in that business may become part of the "matrimonial property" upon which their spouse or civil partner can make a claim. We regularly see disputes relating to the value of the fishing vessel itself and the licences and quota required to fish, as well as how any retained profits in the business ought to be treated.
Farming
The same issues arising in fishing cases can crop up (pun intended) in cases where there are agricultural business interests. Farmland has often been in families for generations and this can lead to difficult questions – who has the right to keep the family home? How will the party who has married into the farm extract themselves in good enough financial shape to enter their new life post marriage? What are the implications? Do assets have to be sold? Will the business survive a divorce?
Share options
Many employers, particularly those in the oil industry, issue share options to their senior employees in a bid to promote loyalty. Different tranches of those options may vest at different times. An expert is often instructed to ascertain the true value of the share options. Is an un-vested share option worth anything at all?
Pensions
Volatility in the financial markets can create difficulties in the valuation of pensions, particularly where there has been a significant passage of time between parties separating and settlement being reached. The law in Scotland requires pensions to be valued at the date on which the parties separated. This can have a significant impact when the value has diminished in the intervening period, as the sums due to the spouse may be more than the pension is currently worth.
Family pets
A common, and understandable, misconception is that the welfare of pets ought to be considered when deciding who should retain them. Furry, feathered or scaly (and no, we are not talking about your spouse), if there is a dispute regarding ownership of the family pet, the starting point is that the legal owner is whoever entered into the contract to acquire it. In the case of horses, the animal itself, tack and equipment such as horse lorries can be of significant value. These matters can be of enormous emotional significance.
Crypto
Cryptocurrency is perhaps the most difficult of assets to deal with given that it has no tangible form. There over 20,000 different types of cryptocurrency and it can be traded anonymously. This makes it difficult to trace back to an individual. Where crypto currency forms a significant proportion of one party's investments, market fluctuations can be significant and ultimately make a huge difference to the value of the overall "pot" for division.
Separation can throw up unexpected challenges, not least the division of assets that had, up until the point of separation, had been an intrinsic part of family life. Even the more unusual or unique scenarios are, however, eminently resolvable with the right approach and advice.
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