“I want to keep the social ‘handle’”

From toasters to second homes, cars to pensions, the financial arrangements following a separation have been somewhat straight forward (albeit not the negotiations necessarily) following the Family Law (Scotland) Act 1985.

Society has changed a lot in that time though, even more so the last five years, with a rise of 'influencers' online, from the celebrity influencer to the local influencer, and everything in-between. With the way in which individuals derive their income being different, how does it impact the matrimonial assets that the court needs to consider at separation. Fergus Johnston, Senior Associate at Gilson Gray shares more.

It is nearly 40 years since parliament enacted the Family Law (Scotland) Act 1985, namely the rules governing financial provision on divorce/dissolution of civil partnerships in Scotland. While the Act has received many amendments over the years, the basic principles applied by the courts in dealing with the division of matrimonial property remain largely unchanged.

Despite its age, this legal framework has served parties well – providing a degree of certainty about how the courts decide what financial provision should be made to parties on separation. That said, society and technology has changed at a rapid pace since the Act was introduced. The ways in which individuals derive an income, and therefore, the range of matrimonial assets and issues requiring to be considered by the courts on separation has evolved at pace. One such evolution is the rise of social media, and in particular, the social media ‘influencer’. So, what are the issues facing a social media influencer on separation from their spouse/partner?

Social media as a business enterprise

Gone are the days when social media was simply an online platform to connect with friends and family. Providing an ability to share content to a limitless online audience has seen a huge number of individuals amass a very large social media ‘following’ and, with that, the ability to derive significant income from their social media accounts. Whether that is through marketing products or promoting brands, advertising space on their particular page/website, or by developing content that is so popular, followers will pay to subscribe to the content. The ways in which income can be derived through social media is many-fold, but is now a business model that is here to stay.

It's.... my social media account

Why should my social media account and following be considered on divorce? It’s mine! Surely, I can just change the password?!

When considering what financial provision should be made on divorce/dissolution of a civil partnership, the starting point is to consider what the parties’ matrimonial property is as at the date of separation. In general, matrimonial property means all the property belonging to the parties acquired by them since the date of the marriage/civil partnership but before the date of separation.

“Property” has been defined widely by the courts. It includes the property most commonly associated with divorce/dissolution, for example, homes, bank accounts and cars. However, it can also include assets such as business interests, licences, or intellectual property. Essentially, anything that has a financial value may be deemed by the court to be property and if acquired during the period of the marriage/civil partnership, matrimonial property. Therefore, it could include the influencer’s business, income derived from that business or any intellectual property rights in the business, despite your spouse/partner playing no part in your influencer platform.

Alternatively, it may be that your client and their spouse/partner operate a social media account with a large following from which they derive a good income. What happens then?

They can have the car, but I'm keeping the 'handle'

Separation can pose real problems if you jointly operate an income-generating account. Valuing any business asset can be difficult. However, there may be practical difficulties for your client post-separation if the joint account was the way in which they made a living. Many accounts operated by couples showcase a particular lifestyle – parenting; travel; fitness; cooking… the list is endless. If their ‘brand’ is you and your spouse/partner as a couple, what will happen when you separate? Who will keep control of the social media account? Do you have a plan for this eventuality?

Trying to resolve these issues after separation will be difficult. It is an emerging area on which there is little or no case law to guide the courts on how to deal with these issues. Perhaps more significantly in the social media world, it may be a time-consuming process. Time spent trying to resolve these issues may result in a lag in producing new content and may, therefore, hinder your ability to keep earning post-separation.

Entering into a pre or post-nuptial agreement is a mechanism by which many can avoid any uncertainty and a potentially costly dispute, plus the agreement between parties as to what is to happen to your social media account on separation. The agreement can also be tailored to individual circumstances and address a whole range of eventualities such as who will keep the account/handle, what (if any) statement will be released to followers on separation, whether the content already produced will remain online post-separation or will be removed, the manner in which the social media account will be closed, and any restrictions on reference to each other on social media following separation. The possibilities are endless!

Written by Fergus Johnston, Senior Associate at Gilson Gray.