Recent developments in Scots law have brought this into sharper focus. The Digital Assets (Scotland) Act 2026 (the "2026 Act") confirms that certain digital assets can be treated as property. It provides greater certainty around ownership, transfer and protection, classifies digital assets as incorporeal moveable property and introduces a presumption that the person in control of a digital asset owns it unless the contrary can be shown.
That matters beyond technology and finance. If a relationship breaks down or there is a dispute about ownership or control of digital assets, the law needs to know what it is dealing with and what it is worth.
Digital assets and separation
In Scotland, digital assets such as cryptocurrency are generally treated like any other asset for the purposes of separation and divorce.
The key question is whether the asset forms part of the matrimonial property. Broadly, matrimonial property is property acquired during the marriage and owned at the date of separation, subject to limited exceptions such as gifts and inheritances.
If cryptocurrency was acquired during the marriage and remains owned at separation, it may form part of the matrimonial property to be valued and shared. The same may apply to other digital assets depending on their nature, source of funding and acquisition date.
Matrimonial property is valued at the date of separation. This can be significant for crypto assets, whose value may fluctuate dramatically. Evidence such as exchange records, transaction histories, wallet information and screenshots may be required to establish value, and specialist input may be needed in complex cases.
Disclosure and hidden assets
Digital assets can create disclosure challenges. Unlike a bank account, crypto assets may be held through exchanges, private wallets, hardware devices or across multiple platforms.
They are not, however, necessarily invisible. Evidence may be found in bank statements, exchange records, tax returns, emails, authentication apps, transaction histories and wallet addresses.
In family law disputes, full and frank financial disclosure is essential. Where there are concerns that digital assets have been concealed or moved, legal advice should be taken promptly. The court has powers to require information to be provided, and concealment of assets may have consequences.
The courts also have powers to preserve and recover evidence. Under the Administration of Justice (Scotland) Act 1972, orders may be sought for the inspection, preservation and recovery of documents or property. In disputes involving digital assets, issues can arise around identifying relevant assets and balancing recovery of information against privacy rights. Early steps to preserve evidence may therefore be critical.
When digital assets become a wider dispute
Digital assets can give rise to disputes beyond family law, including allegations of misappropriation, fraud, failed transfers, business disputes and insolvency matters.
Common issues include:
Jurisdiction: assets can be transferred quickly across borders, creating enforcement difficulties even where the Scottish courts have jurisdiction.
Good faith transactions: under the 2026 Act, a good faith purchaser may acquire ownership even where the transferor was not the owner, potentially limiting recovery options.
Third parties: unlike traditional bank accounts, digital assets may not be held by an identifiable intermediary against whom traditional enforcement measures can be used.
Prompt action is often required. Potential remedies include:
Interdict, including interim interdict, to prevent a transfer.
Orders restoring the previous position where a transfer can be technologically reversed.
Arrestment on the dependence where assets are held by an identifiable third party and the legal requirements are met.
Preservation and recovery orders under the 1972 Act where there are concerns that evidence may be lost or concealed.
Practical steps
If digital assets may be relevant to a divorce or dispute, useful steps include:
identifying exchanges, wallets, apps, devices, tokens or NFTs;
preserving transaction histories, wallet addresses and screenshots;
retaining bank statements showing transfers to or from exchanges;
keeping relevant emails, messages and tax records; and
taking advice before transferring, selling or sharing access to an asset.
Where a financial settlement is reached, digital assets may be sold, transferred, retained with an offset against other assets or reflected in a balancing payment. The most appropriate solution will depend on value, practicality, tax and fairness.
A developing area
The law in this area is still developing, but the direction of travel is clear: digital assets should not be ignored. Whether in a divorce, separation or wider dispute, they can have significant value and legal consequences.
Our Family Law and Litigation & Dispute Resolution teams can help clients identify digital assets, understand their value, preserve evidence and take practical steps to protect their position.
This article was co-authored by Trainee Solicitor at MFMac Taya Hardie.
