An interest in a business (e.g. shares in a company, a partnership interest or sole trader) is treated in the same way as other property on divorce in Scotland.
If the business interest was created during the marriage, it will be subject to the same principles of fair sharing of matrimonial property on divorce. An exception to this is if the business interest was acquired through a gift or inheritance and no consideration was paid in exchange.
What about shares in a company held before marriage?
If the interest in a business was owned before marriage, it is not matrimonial property and not subject to sharing.
A change to the share structure in a company during the marriage can create matrimonial property. There are other aspects we would also look at, for example, income accumulated during the marriage which has been retained in the company.
Is being a director of a company relevant to divorce?
If someone is a director of a company this may be relevant when it comes to looking a remuneration and if there are any director loans (money owed to the company or money owned by the company to the director).
How do you value a business interest?
As with most assets we look to value on divorce, we consider the fair market value at the date of separation. To establish what would constitute the fair market value, we will often work with a forensic accountant to give an opinion-based valuation. They will consider issues around the liquidity of the company, the extent of the shareholding, and any discounts to the value as a result.
How can you protect a business interest from a claim on divorce?
Entering a pre-nuptial or post-nuptial agreement is one way to exclude business interests from a claim on divorce, but these require careful discussion and agreement. Any changes to the structure of shares in a company held before marriage should be considered carefully and considering all potential outcomes from a commercial and personal perspective.
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