Marriage breakdown and interim aliment
Spouses and civil partners have an obligation to support or aliment each other throughout their relationship in terms of section 1(1) of the Family Law (Scotland) Act 1985. That obligation does not immediately disappear simply because the parties (or one of them) decide to separate.
When a marriage or civil partnership ends, an application can be made to the Court requesting that short-term financial support is provided for one of the parties pending the case being resolved and a global settlement being reached. This is known as an application for “interim aliment”.
An application for interim aliment is often made at the outset of the action of divorce or dissolution, but it can be raised at any stage in the proceedings if it can be demonstrated that there is a case for interim aliment to be paid. Circumstances can change significantly during the period post-separation, therefore your financial situation should be discussed with your solicitor as soon as possible. Your solicitor may need to consider whether interim aliment is needed, whether payment of interim aliment can be agreed between the parties, or whether an application requires to be made urgently to the Court to protect you if you are financially vulnerable.
If an application to Court is required, it is important to note that the granting of an award of interim aliment is a matter for the discretion of the Court. There are a number of factors that the Court will require to take into account when assessing an application for interim aliment. These factors can be summarised as, (a) the needs and resources of the parties; (b) the earning capacities of the parties, and (c) generally all the circumstances of the case.
It is important that relevant material is before the Court in order for it to reach a decision about whether interim aliment should be awarded. A useful starting point is for the party seeking an award of interim aliment to prepare a schedule of their current income and a list of all the payments they require to make on a monthly basis. It can be helpful to gather bank statements detailing those payments and to have recent wage slips or benefits award letters to hand as these may need to be lodged with the Court in support of the application. It can be reassuring to know that in circumstances where one party is reluctant, or is refusing, to produce financial information that might assist the Court, they can be ordered by the Court to do so. In addition, an application can be made for permission to recover financial information direct from that party’s bank or building society.
Circumstances that may be relevant when assessing whether or not to grant an award of interim aliment could include whether the party being invited to pay interim aliment is financially supporting anyone else in their household, whether they are co-habiting with a third party and indeed, whether the person seeking interim aliment is now co-habiting with someone else. The Court will consider the collective means of the parties in those circumstances. It should be noted that while the Court has a very wide discretion to take account of “all the circumstances of the case”, this does not extend to taking into account the conduct of the parties, unless it would be “manifestly inequitable” to leave it out of account.
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