Introduction to Interim Aliment in Scotland
Understanding the Legal Responsibility of Spouses and Civil Partners
In Scotland, the bond between spouses and civil partners goes beyond love—it's intertwined with a shared financial responsibility. As established in section 1 (1) of the Family Law (Scotland) Act 1985, both partners are legally required to financially support each other, not just during their union but also after separation. This obligation for financial support is known as aliment. Should one party neglect their financial duties, the other has the right to pursue a court order for aliment. While aliment payments typically cease, there are cases where support may continue for up to three years post-divorce. After you are divorced, the obligation to maintain your spouse is known as Periodical Allowance.
What is Interim Aliment?
A Short-Term Solution for Financial Support During Divorce
When the marriage or civil partnership ends, an application for 'interim aliment' can be made by applying to the Sheriff Court. Interim aliment refers tor short-term financial support that a party can request during divorce or dissolution proceedings. This request is usually made at the beginning of divorce action or dissolution proceedings, but can be sought at any stage in the process. It is crucial to discuss your financial position with your solicitor early on to assess whether an interim aliment application suits your needs.
Key Considerations for Applying for Interim Aliment
- Non-Backdating of Payments:
An important aspect to note is that alimentary payments are not backdated. Therefore, it is important to seek an application at the outset if interim aliment is necessary.
- Court Discretion:
Whether an interim aliment is granted or not is dependent on the discretion of the court. The Sheriff will consider vital factors in relation to the application. These factors can be (but are not limited to) the following:- Needs and resources of the parties – including income, expenditure, fixed assets and savings.
- The earning capacities of both parties.
- All other general circumstances.
- Preparation of Documentation:
To support the application for aliment, prepare a comprehensive schedule of your income and expenditures, along with recent wage slips.
- Behavioural Considerations:
Of note, courts typically do not consider the parties' behaviour unless it is 'manifestly unfair not to do so'.
- Current Living Arrangements:
It is important to note that a party can still seek aliment even if the spouse or civil partner is currently still living in the same premises.
Modification of Interim Aliment
Understanding the Court's Discretion and Legal Flexibility
The court has the discretion to assess what is a reasonable accounting for all relevant circumstances. Hence, the court can award an amount of aliment which is less than the sum sued for, if the court believes this is more appropriate. Later, the amount of aliment can also be revisited and altered in cases where there is a legitimate reason to do so and if there has been a material change in circumstances.
The discretion of the court also captures whether to award aliment for a set period, an indefinite period or until a specific event occurs, which would alter the financial position of the parties.
Interim aliment payments are payable whilst the parties are still married or in a civil partnership, hence any alimentary payment will cease upon the finalisation of divorce. However, it can be adjusted or terminated earlier if circumstances legitimately change.
Defence Against Aliment Payments
Proving Inability to Pay and Other Defenses
If you find yourself facing aliment payments, you may be able to avoid having to pay. If you can prove you have no financial means to fund the payment, or show you are already alimenting your spouse or civil partner a reasonable amount by way of a voluntary agreement. The court may find that in the circumstances, it would not be reasonable to require a payment to be made. Alimentary payments are not a route to simply receive a monthly payment from your ex-partner. They are utilised only to maintain the lifestyle parties that were both afforded throughout the marriage.
Enforcement of Aliment Payments
Legal Measures and Consequences for Non-Payment
If a party fails to pay their aliment, various measures can be taken, including arrestment of the other party's earnings following non-payment of aliment. The party is not obliged to reappear in court to reinforce the payment of aliment if a court order has been granted or the agreement is registered in the Register of Scotland.
A court order is comparable to a standard agreement between the parties; hence, any Agreement will often stipulate that any non-payment or late payment of aliment results in additional interest between the scheduled due date and the date until paid by the party.
Conclusion
Seeking Legal Advice for Financial Support in Divorce
Navigating the waters of separation or divorce can be challenging, especially when it comes to financial matters, such as interim aliment. If you think you might be entitled to financial support, or if your ex-partner has approached you for financial contributions, please get in touch with us on {{CONTACT_NUMBER}}. Our experienced family solicitors are here to provide tailored advice and support on any family law matters in Scotland. We understand every situation is unique, and tailored advice is essential for achieving a fair resolution. Contact us today to discuss your options and secure the support you need during this challenging time.
This article was co-authored by our solicitor in the Family Law Department, Melissa McNeill, and our summer student, Ciara Pryce, as part of our summer placement programme. If you are interested in learning more about our summer placement opportunities, please check out: https://www.mshblegal.com/about-us/careers/summer-placements.html.