Christmas is over for another year, the tree is down and the presents have all been unwrapped. January is a busy month for Family Law Solicitors who, every year, will receive a large number of separation and divorce enquiries.
Whether you gifted or received a gift over the Christmas period from your spouse, it is important to bear in mind the legal position of what happens to a gift on separation.
The Legal Position
In Scotland, gifts given between spouses are classed as matrimonial property. Matrimonial property encompasses all assets owned by one or both parties at the date of separation, including items acquired before the marriage for use as a family home or its furnishings. As a result, on separation, the value of significant gifts—such as watches or jewellery—must be taken into account when calculating the total value of matrimonial assets.
However, if items are received from third parties by way of a gift or inheritance, then such items are not classed as matrimonial property. That means if you have received a gift or inherited money, artwork or jewellery then it will remain your property and your spouse will not have a claim on it.
Be aware however, if such a gift or inheritance is then used to purchase something else during marriage, it may be seen to have changed form and be classed as matrimonial property.
A common question is whether engagement rings are classed as matrimonial property. As they are typically given prior to marriage, they are not matrimonial property and therefore can solely be retained by the receiver.
Protective steps for the Gift-giver
If you want to gift to an individual and not to a married couple or family unit, then it is important you make that very clear to the parties at the time. A precaution would be to record in writing who the gift is being made to, avoiding any future ambiguity.
How can I protect gifts I receive?
Gifts from third parties and inheritance you may receive are not classed as matrimonial property. This may become less clear if such items change their nature during the course of the marriage. For example, you may decide to use gifted or inherited money to put down a deposit on the purchase of a property.
In such an event, you may wish to enter into a Pre-Nuptial or Post-Nuptial Agreement to ring fence or exclude from consideration as matrimonial property, gifts or inheritance you receive even if they subsequently change their nature during the marriage. Nuptial Agreements are generally treated as legally binding contracts provided their terms are fair and reasonable at the time of drafting and both parties have had the opportunity to seek separate legal advice,
Do you need some advice?
If you are looking for advice relating to protecting gifts, general advice about separation or any aspect of Family Law, please get in touch with a member of our Family Law team on 0330 430150.
