Credit for post-separation mortgage payments in determining fair division of matrimonial property arose in Fox v Fox [2019] SC STI 3; 2019 GWD 2-31.

The wife, who had been meeting the mortgage payments, advanced s 9(1)(b) arguments in respect of those and other household costs. While acknowledging he had been economically advantaged, the husband argued, and the sheriff accepted, that this had been offset by the economic disadvantage he had suffered, the necessary consequence of separation being his requirement to find rented accommodation.

The sheriff further accepted that the defender had also had the advantage of living in the matrimonial home post-separation – she would otherwise have had to incur expenditure on rent.