Divorce – financial provision cases

Page contents:

This page includes merits information for various types of divorce cases with financial provision. The case types covered include capital sum orders; transfer of property orders; earmarking orders; incidental orders in terms of section 14(2) of the Family Law (Scotland) Act 1985; and pension sharing orders. It covers the kinds of information we expect to see with these types of applications.

Orders for financial provision – married couples and civil partners

Before granting civil legal aid, we need to be satisfied that matrimonial or partnership property exists to satisfy the orders for financial provision sought.

All applications should include:

Information on the orders being sought
Any details your client has or knows about the matrimonial or partnership property and debts
Any vouching or supporting documentation that may be available for the matrimonial or partnership property and debts.

Where no such information is available, your client’s statement must explain why.

Applications should include:

A schedule of matrimonial or partnership assets and debts.
Proof that the claim for financial provision is made in relation to a divorce or dissolution of civil partnership or an action of nullity.
Any vouching that is available (if there is insufficient time to get such documentation you should explain why).
Details of the relevant date (the date on which the parties stopped cohabiting).
Where orders are to be opposed, a copy of the writ showing the orders sought by the opponent.
Details of the nature and value of the matrimonial or partnership property at the relevant date and details of the relevant debt.
An explanation to show the order being sought is reasonable having regard to the relevant resources of each party.

Capital sum order

An order for payment of a capital sum relates to a specified sum of money paid in instalments or a lump sum. Additional information that should be provided in support of such a claim includes:

Details of the matrimonial assets and debts to show why the order is reasonable, and information about the property from which the order will be satisfied.

Transfer of property order

Additional information that should be provided in support of an application for a transfer of property order:

Details of the need for consent of a third party or the likelihood of getting it.
Details of the property for which the order is sought.
Supporting information showing there is property for which an order can be sought.

Periodical allowance order

Additional information that should be provided in support of a periodical allowance order:

Information showing the order is justified.
Details of your client’s and their opponent’s financial position.
Supporting information from a third party about the opponent’s financial position, if available.

Earmarking order

Additional information that should be provided in support of any request for an earmarking order includes:

Details of the capital sum for which legal aid is being sought or a statement that your client is already receiving legal aid to pursue a capital sum order.
Details of the rights or interests that the opponent has, or may have, in benefits in the pension.
A statement that those benefits include a lump sum payable to the opponent on retirement or death.
Supporting information showing the existence of the opponent’s pension interests.

Incidental order

An incidental order includes orders such as:

Sale of the matrimonial or civil partnership home
The valuation of property
Determining any dispute between the parties to the marriage about their respective property rights by means of a declarator

Additional information that needs to be produced in support of such an order:

Information about the nature of the incidental order being sought
Information showing there is a need for such an incidental order

Information to show the incidental order is reasonable having regard to the relative resources of the parties.

Pension sharing orders

Additional information that should be provided to support a claim includes:

Your client’s statement.
Details explaining why a pension sharing order is needed and vouching of the value of the pension.
If no vouching is available, enough information about the potential value of the rights that can be apportioned to the period of the marriage, to satisfy us the sums are large enough to justify seeking a pension sharing order.

Where the value of a pension is £5,000 or less – it is unlikely to be reasonable to grant legal aid to pursue an order because the overall costs involved would be disproportionate.

Divorce – non-financial provision cases

Applications for legal aid by curators ad litem for children