Divorce - Through the looking glass....

By Nadine Martin, Associate at Gillespie Macandrew 

No sooner had the news broken that Johnny Depp and his wife of 15 months Amber Heard had separated than we were bombarded with information about their divorce, the exclusion of Mr Depp from the home which he had owned before his marriage, Ms Heard’s claim for ongoing financial support, and their lack of a pre-nuptial agreement.

A number of issues arise in the Depp-Heard divorce which are not just the province of Hollywood and which people getting married or separating in Scotland should have an eye to.

Firstly, there is the issue of reputational damage that divorce can sometimes bring. There are media reports that due to the ‘bad publicity’ attending his divorce, Mr Depp’s most recent film has experienced a significant drop in ticket sales. This issue of reputational damage is not however restricted to A-listers. The initial reverberations of separation can be felt throughout social and employment networks. Thinking about how the issue of separation is to be approached is important, preferably before it is announced. It is equally important to get good advice if a spouse tries to publicise a separation in a way that causes reputational damage. There are ways to control and limit any damage, but prevention is the best cure. Negotiation, including alternative dispute resolution, as opposed to litigation as the first option can really help focus minds on how spouses would like their separation to progress, with as little adverse impact as possible.

Ms Heard has obtained a court order that she should reside in the home which she lived with Mr Depp following their marriage. In Scotland, if either spouse considers that the other should be excluded from the family home, it is imperative to get good, objective advice and to move quickly. The test for exclusion is a high one and the courts will not interfere lightly with the occupancy rights of spouses. Again, trying to reach an amicable arrangement as to who will live where following separation is always the best course.

In terms of spousal support, referred to in Scotland as aliment, there are widespread reports that Ms Heard seeks tens of thousands of dollars per month from Mr Depp. In Scotland, each party to a marriage has an obligation to aliment the other following separation and pending divorce. Disclosure of each party’s resources and an evaluation of needs is key to analysing what, if anything, should be paid. A party who cannot establish need is not entitled to aliment. In the Depp-Heard case, similar arguments are being made that Ms Heard, who is a successful model and actress in her own right, has no ‘need’ to be supported by her husband.

That brings us to the question of the duration of the marriage. In Scotland, where a marriage is of short duration, it is possible for one spouse to argue that the other has not been financially dependent upon them in any true sense. That can have an impact on the type of financial provision available to spouses upon divorce, including the aliment referred to above. In addition, the length of a marriage can constitute a ‘special circumstance’ which would allow the court to depart from the principle of fair sharing of the net value of matrimonial property. A short marriage does not, however, mean that a spouse will automatically be entitled to less. They will usually be entitled to at least 50% of the net value of matrimonial property acquired during the course of the marriage unless the court can be persuaded that the shortness of the marriage allows a departure from this.

Lastly, the issue of a pre-nuptial agreement, or lack thereof, has been a factor in the Depp-Heard divorce, with Mr Depp being lambasted for his lack of foresight (as the wealthier spouse) in not insisting upon a pre-nuptial agreement. In Scotland, at least, pre-nuptial (and post-nuptial) agreements are recognised and are generally binding in the event of separation and divorce, so long as a number of issues are properly addressed. Put very broadly, any such agreement must be fair and reasonable at the time it was entered into (including a full disclosure by the parties of their respective asset and liability position) and the parties must have had the opportunity of taking independent legal advice. In Scotland, a pre-nuptial agreement can ‘ring fence’ the assets which each party brings into the marriage and can make provision for how assets and income acquired during the marriage will be treated upon divorce. It can also include provision for confidentiality - something Mr Depp would no doubt have preferred.

There is no perfect way to divorce, but the Depp-Heard case gives a number of examples of how proceeding in a certain way can have a highly negative impact. Acrimony, stress, recrimination and cost are things which can avoided or at least limited if, before they go through the looking glass, parties think carefully about how they wish to treat one other (and their assets) should the marriage end.

Felicity MacFarlane

Account Director

Indigo

27 Maritime Street

Edinburgh EH6 6SE

Tel: 0131 554 1230

Mob: 07584 672 301

Fax: 0131 554 1549

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