The new Digital Assets (Scotland) Act 2026 is now in force. Its purpose is to bring some necessary clarification to the law surrounding ownership of digital assets in Scotland. The position, post the 2026 Act, is that digital assets are property which can be owned and transferred, which was not always understood to be the case.
Digital assets are increasingly relevant when spouses separate in Scotland, particularly where one or both parties hold cryptocurrency, digital businesses, domain names, social media accounts, NFTs (non-fungible tokens) or intellectual property.
The Act is hopefully the beginning of what will be further legislation and judicial treatment making it easier to recognise and manage the issues surrounding digital assets and, in particular, some of the challenges which can be encountered when dealing with them on divorce and separation in Scotland. In the meantime, we can look to the existing framework governing financial provision on separation and divorce for guidance.
How are digital assets identified in a Scottish divorce?
The starting point is to identify whether these assets form part of the matrimonial property, which they ought to be if they were acquired by one or both of the parties during the marriage but before separation and the assets were not gifted by a third party or inherited.
Without a full and transparent disclosure by each party, determining the existence of digital assets and identifying them can be difficult. When separating and divorcing, parties are expected and obliged to disclose their assets whether digital or otherwise and, in terms of the new legislation, a person who has control of a digital asset is presumed to own that asset. Digital assets may be harder to identify than say traditional bank accounts because they can be held across exchanges, private wallets, decentralised platforms, or accounts in pseudonymous usernames. Ordinarily, there are mechanisms through which a spouse (or civil partner) can apply to the court to obtain financial information belonging to another spouse. Time will tell whether this is an effective remedy in relation to digital assets given that they are generally difficult to trace. Once identified and traced, jurisdictional issues may arise making the enforceability of orders from a Scottish Court uncertain and, potentially, costly.
The pace at which digital assets can be transacted with and moved between different jurisdictions presents further challenges. It may be helpful to consider an application to the court for interim orders to prevent assets being disposed of pending a final settlement.
How are digital assets valued on divorce?
The next stage is to value these assets. Valuing digital assets can be particularly difficult, and some assets are more difficult to value than others. Certain assets, such as listed cryptocurrency, can be valued by reference to market price at the date of separation. Others, such as NFTs, online businesses, web domains, or revenue streams from digital platforms, are likely to require expert input.
Once the assets have been identified and valued, Scottish law states that their value (at the time of separation) should be divided fairly between separating spouses. The starting point is equal sharing but a specialist family law solicitor at Thorntons can advise as to when unequal sharing may be justified.
How are digital assets divided on separation and divorce?
The practical considerations in relation to dividing or transferring digital assets require careful consideration. Fluctuations in value are characteristic of digital assets and can make it particularly difficult to ascertain a fair account of assets which may have increased or decreased in value significantly between the date of separation and the date of settlement.
Some digital assets are capable of direct transfer or division but that is not always the case. It is not unusual for digital assets to be tied to platform terms, have strict identity verification processes, require passwords or private keys, or be subject to regulatory restrictions. You should deal with all relevant considerations carefully and, if necessary, ensure that they are set out in a Separation Agreement.
If you are separating or considering divorce and digital assets form part of your finances, our experienced Family Law team can help you understand how they may be treated and what steps you should take. Contact our Family Law team for advice tailored to your circumstances.
