HM Insights

Family law case updates: ongoing financial provision after divorce, and a cohabitant's right to their partners pension benefits

Two cases, one from England and one from Northern Ireland, have been decided recently which are of interest to us in Scotland.

Ongoing maintenance for separated spouses

The first concerns a former spouse who has been successful in obtaining further financial support from her former spouse even though parties have been divorced for some time. Graham Mills, aged 50, has been ordered to pay his ex-wife Maria Mills financial support indefinitely. She told the court that she had spent all of the original £230,000 which she received as a divorce settlement following the end of their 13-year marriage in 2002. It is believed that Mr Mills will appeal the decision to the Supreme Court.

Family Law Financial Provision Divorce Ongoing Maintenance Scotland Solicitor Separation

The position regarding ongoing maintenance for separated spouses is very different north and south of the Border. In Scotland, we have much more of a clean break principle, meaning that maintenance is very rarely awarded indefinitely. Instead, and if it can be shown that the capital split is not enough, there is the possibility of a spouse receiving support for an adjustment period of time of up to three years following divorce.

That entitlement is not automatic. Instead, the spouse must show a need for ongoing support. This means that parties' respective needs, resources, earning capacities and all the circumstances are looked at carefully. Often, support is not payable for as long as three years. Its purpose is strictly to help the spouse adjust to the loss of support previously enjoyed during marriage. Although there is the possibility of indefinite support under our family law legislation, it is only where serious financial hardship can be proven.

In England, the maintenance provision is much more generous. This is an aspect of English family law which many believe should be changed. As matters presently stand, however, it can often be beneficial for a spouse to use English family law, where that person has been financially dependent on his or her spouse during the marriage. In today's times of increased mobility, we quite often come across cases where there can be the possibility of using Scottish or English family law to resolve issues arising from the breakdown of a marriage. Given that the legal systems are quite different north and south of the Border, it is important that clients receive good advice on the best way forward for them in their particular circumstances. A key point to establish at the outset is whether the spouses last lived together as a couple in Scotland or in England. This will in turn help determine which legal system can be used.

Cohabitants and their partners pension benefits

The other case concerns a cohabiting couple, Lenny McMullan and Denise Brewster. Mr McMullan died suddenly at Christmas in 2009. The couple had recently become engaged and had lived together for 10 years. At the time of his death, Mr McMullan had been working for the Northern Ireland public transport service Translink. He was a member of Translink's occupational pension scheme. Unfortunately, he had not filled out an expression of wishes form. Unlike the position with a married couple, where the surviving spouse would automatically have been entitled to receive the pension benefits, Miss Brewster as a cohabitant where an expression of wishes form had not been completed, was not so entitled.

Miss Brewster successfully argued in court that the system of nomination forms discriminated against her. Eventually, after the case was heard in the Supreme Court, she was successful. The court ruled that she was entitled to receive payments under the pension scheme, and on the basis that the nomination form was "unlawful discrimination".

This decision is important where a cohabitant dies whilst a member of an occupational pension scheme and where that person has not completed an expression of wishes form. It looks likely that other public sector schemes will need to change their rules so that unmarried couples automatically benefit from survivors' pensions. The decision gives hope for cohabitants whose partners die unexpectedly.

Nevertheless, it is important, (and regardless of your relationship status) to make a Will so that it is clear what you want to happen in the event of your death, and to keep your Will under review. You should also ensure you have completed pension nominations for your pensions, so that your wishes are accurately reflected.

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The small print: This blog is for information purposes only and should not be construed in any way as providing legal advice.