Dissipation

Author: Mitchells Roberton
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In Scotland, where divorce proceedings are commenced, the court will generally not take into account the conduct of one spouse when dividing up the matrimonial property between the parties. However, there is an exception to this established rule where one spouse’s behaviour has adversely affected the financial resources of the parties through dissipation.

Whilst there is no legal definition of dissipation Lady Wolffe in the case of G v G (2016 SCOH 32) stated that:

“Applying its ordinary meaning “dissipation” is suggestive of a waste or loss of matrimonial funds which cannot be traced or which is not represented by a replacement asset. Excessive spending grossly out of proportion to the resources within the matrimonial common wealth or monies lost by gambling might be examples of “dissipation.”

In the case of Buchan v Buchan (2001 FAM LR 48) the Sheriff confirmed that a submissive failure to prevent depletion of matrimonial property is insufficient to establish dissipation, with the Sheriff going on to say there must be an element of “deliberate and positively wanton conduct”.

There is not a list of behaviour that may be considered to cause unreasonable depletion of matrimonial property by one spouse to the detriment of the other , but possible examples may include reckless spending, transferring assets to a third party or placing funds in a foreign account with the intention of placing these funds beyond the reach of a spouse.

So if you suspect dissipation what can be done?

  • An urgent interdict can be put in place to prevent further alienation of assets
  • Bank accounts can be frozen
  • Earnings can be arrested
  • The court can make an order for the recovery of relevant documents that could provide evidence to support a claim of dissipation

If you suspect dissipation please contact one of the members of our court team who will be happy to assist. Please telephone 0141 552 3422

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