HM Insights

Never mind marrying a footballer, England should aspire to Scotland's divorce system

Family lawyers in Scotland have watched with interest these last few months as the Courts in England have made decisions which have caused consternation in England. Only a few months ago, Baroness Deech, chair of the Bar Standards Board, commented that the English divorce system sends out a message to girls that they should "aspire to marrying a footballer".

The reason was that having done so they'd never have to work again no matter what happened to their marriage because of the perceived very favourable divorce settlements which are available in England. Amongst the international set, London is becoming seen as the best place for a claim by a wife on a wealthy husband so long as she can establish jurisdiction there.

The Vince ruling, and why it couldn't happen in Scotland

I think, however, everyone was stunned by the Supreme Court's decision to allow a divorced spouse to proceed with a financial claim against her ex-husband some 20 years after they divorced and in circumstances where the wealth that she was claiming a share of had come into being after their divorce had been granted.

In March 2015, the Supreme Court ruled that Kathleen Wyatt, who split from her husband in 1992 after 11 years of marriage, was entitled to claim cash from her ex-husband Dale Vince - now a multi-millionaire after going on to set up a successful company years after their split.

This brings into very sharp focus one of the major differences between Scottish and English divorce law. In Scotland, claims are brought to an end at divorce and if a financial claim has not been made by the time divorce is granted, then you are too late.

In England, they divorce first and deal with the finances later and unless a Consent Order is obtained that there will be no further financial claims (either because the couple have reached a financial agreement or because they recognised that there is no money to be argued over), then the way is left open for a financial claim to be met. The Supreme Court now says that there is no time limit in which a claim can be made.

Of course, many people probably did not proceed to get the Consent Order that there would be no further financial claims because at the time they were divorcing, there was no money for consideration. I expect that was the situation in this case.

To us in Scotland however, it does seem extraordinary that a claim can be received and considered by the Court so late in the day. Apart from the fact that in Scotland the grant of Decree of Divorce brings financial claims to an end, our very concept of matrimonial property would, in this particular case, mean that the spouse would not be entitled to anything in Scotland either.

Matrimonial property is "property acquired by either or both parties during the marriage and before the relevant date" (the date of separation) with some exceptions that need not concern us here. In the case of Mr Vince, then he would have had no concern in Scotland because his new-found wealth after divorce would not, in any circumstances, constitute matrimonial property because it came into being after their date of separation.

This case, of course, will now have to be dealt with in the High Court but I would be astonished if it was not again the subject of various appeals once a substantive decision has been made and the Supreme Court have, of course, already commented that Ms Wyatt has pitched her claim rather too high. I think there is more of this case to come.

Maintained for life?

Prior to the Vince ruling, the Court had seemed to be taking on board Baroness Deech's comments by issuing what was regarded by many as a relatively radical decision in saying that a wife could not expect to be maintained for life and that she should expect to get a job and earn for herself.

Those of us in Scotland who listened with interest to the commentators after that judgement was issued probably, collectively, considered that the Scottish system is much better. A spouse can receive spousal maintenance (or periodical allowance, as it is called after divorce) where there is an unmet financial need, which is assessed based on the parties' circumstances and their respective needs and resources. The Court has a wide discretion to take into account any number of factors including earning capacities, age, health of parties and any children and generally, all the circumstances of the case - which covers anything else.

Those who supported the notion that a wife in England should have an entitlement to lifetime maintenance argued very loudly that this was because of the economic sacrifice the wife had made, generally by giving up career to look after children. No-one in Scotland is suggesting that that sort of economic sacrifice should go ignored and we similarly have provisions that an additional award can be made to a spouse who has made that economic sacrifice.

The Court has, however, made clear that it is not automatically the case that a wife who gives up a career should receive an additional award because there has to be an element of economic disadvantage. In other words, the wife who has given up work (note: not career) because:

  1. the family were in a fortunate enough position to be able to afford for her to do so;
  2. that is what they both wanted at the time; and
  3. in circumstances where the family is fully maintained whilst she takes on the role of home-maker and principal child carer;

may not have any economic disadvantage if, in the event of divorce, the couple then share equally the wealth that has nevertheless been created during their marriage. Most people would regard that as fair.

Of course, the devil is in the detail, and what one person regards as their economic sacrifice in the interests of the family may not match what their spouse values it at.

On the other hand in England, there has been a much more paternalistic attitude towards wives until relatively recent decisions such that, commonly, decisions were based on the wife's need for a house and ongoing maintenance, which sometimes, and indeed often, was for life.

When you think about it, that is a fairly long time if, say, a couple divorce after 10 or 15 years of marriage when they perhaps have children of pre-secondary school age. Those children may have a further 10 years or so in secondary education and then some years at university but within 15 years, they will have flown the nest.

In my experience, there are not many separated couples where the wife can maintain the home-maker and child care role without having, for economic reasons alone, to take on some kind of job at some point. As life expectancy increases, is it really appropriate that after, say, a 10- or 15-year marriage, maintenance should be paid for 40 or 50 years?

To those of us in Scotland who practice family law, such a notion seems really extraordinary. In the vast majority of cases in Scotland, spousal maintenance lasts for no more than three years after divorce if it is paid at all. Where it is, often the period of time is much less than the maximum three years.

It is hard to believe today's 20-somethings think that an obligation to maintain a spouse for life is what they are really signing up to on marriage.

We have just celebrated "International Women's Day", which recognises the campaign for equal rights that women have fought so long for. Of course where one spouse takes on childcare role the other needs to help pay for the financial consequences of that decision. In Scotland, our rules have a mechanism to deal with that but the notion of lifetime maintenance is, in my view, quite difficult to reconcile with modern society.

Better and fairer, and a model to follow

Looking back, there has been quite a bit of activity in England about family law in recent months and, in each case, I think we can take the view that the Scottish system is better and fairer.

Undoubtedly, there will be cases where a spouse, usually a wife, in Scotland does not achieve all that she hopes for and feels aggrieved. However, in considering general, overall fairness to both sides, the Family Law (Scotland) Act 1985 (as amended) has stood us in good stead over these last 30 years. In my view it is a very solid and good framework that the English should consider adopting if they ever get round to significant reform of family law.

One would have thought that some of the recent decisions and comments from the Bench suggest that reform is overdue.

Janice Jones is a Partner in Harper Macleod's Family Law team with more than 20 years experience in all types of actions  Janice.jones@harpermacleod.co.uk

Harper Macleod's team of family solicitors understands that divorce and separation can have a huge impact on your life, and can guide you through the best course of action with sensitivity and objectivity. Getting the best advice is crucial to resolving your situation, and there are many options available to you, from litigation and arbitration to negotiation, mediation and collaboration. We have also designed a number of packaged fees which, in certain circumstances, will let you know from the outset what the costs will be.

To talk to Janice or one of our team call 0141 227 9545.