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Dispute Resolution

Family practitioners have been eagerly awaiting the Supreme Court decision in the case of McDonald v McDonald as to the interpretation of Regulation 4 of the Divorce etc (Pensions) (Scotland) Regulations 2000.   The Supreme Court have now released their judgment – creating a landmark decision for how pensions should be treated upon divorce.                                                                                                                                                                                                                             

To date solicitors have been restricted in the types of fee arrangement that can be offered to clients. For example, solicitors have been unable to charge a fee based on the percentage of sums awarded in a litigation.

                                                                                                                                                                                                             

When spouses separate and require financial resolution between them as a result, in Scotland they will be advised by family lawyers that they are entitled to fair division of the net matrimonial property.  In general terms matrimonial property includes all assets belonging to the parties individually or jointly which was acquired during the period of marriage and held as at the date of separation, less any debts similarly held by the parties individually or jointly as at that date, subject to a few exceptions.                                                                                                                                                                                                                                

New requirements have come into effect which will have application for many of the major commercial disputes litigated here in Scotland. These requirements aim to nudge parties away from the Court and towards Alternative Dispute Resolution (“ADR”) or settlement. Below is set out a summary of the changes and what their effect may be for those parties engaged in a commercial dispute.

The introduction of 'Pursuer’s Offers' is the latest in a number of recent changes to the Court rules.  These changes come into force on 3 April 2017 and apply to both Court of Session and Sheriff Court actions.  They follow the theme of encouraging litigants to settle cases before they reach an evidential hearing in a case.

Accident victims who suffer severe and life changing injuries are often awarded a lump sum in compensation for future losses.  For example, claimants who suffer a serious injury may be able to claim a lump sum to compensate them for future loss of earnings and/or future care costs. In principle that lump sum if invested should be capable of being drawn down over the projected period of loss so that by periodically withdrawing a combination of capital and accrued interest the compensation will only run out at the end of the relevant period.

The Scottish Courts and Tribunal Service (SCTS) launch the new Simple Procedure for payment claims of up to £5,000 on 28th November 2016.  This will replace and streamline the two current and separate procedures of Small Claims for debts up to £3,000 and Summary Cause for debts over £3,000 but under £5,001.

New rules set out how a claim will be made, detailing the forms to be completed and the procedures that must be followed. Claims will still be made on paper for now but it is anticipated the new Civil Online portal, allowing forms to be submitted electronically, will be introduced in early 2017.  

Prenuptial agreements (or ante-nuptial/pre-marriage contracts) have become increasingly popular in Scotland, with more couples wishing to make provision for what is to happen in the unfortunate event of the breakdown of their relationship.  

It could be said that entering into a prenuptial agreement is a very pessimistic way to commence a marriage.  It can however be a very effective financial planning tool for both parties and can help to avoid costly and drawn out litigation in the event of separation.  

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