I have specialised in international aspects of family law for some years now, but my practice has only afforded me a handful of cases involving our near-neighbours to the north in Scotland (mainly as jurisdiction for divorce is invariably clear cut).
Many of my clients believe that the family laws of England and Scotland match up; surely not much can change looking over Hadrian’s Wall.
Amongst English family lawyers, the misconception is often the other way – the prevailing attitude being that “you won’t get anything in Scotland” when acting for the financial weaker party and that we are worlds apart in our approaches to all aspects of family law, not least financial provision on divorce.
Principles, checklists and discretion
Financial provision on divorce in Scotland is guided by sections 8 to 17 of the Family Law (Scotland) Act 1985. But even in that sentence, I have fallen into a classic English family lawyer trap.
In England, we are “guided” by the checklist of factors in section 25(2) Matrimonial Causes Act 1973 and the sprawling body of caselaw, all of which guides a broad discretion. My advice to clients is often to give a window of possible outcomes. The phrase “it’s one of the outcomes the court could give” is a regular part of my advice.
In Scotland, the principles in section 9 of their act provide a “road map” to a fair decision. There is no discretion without applying the provisions and principles of the 1985 Act. It is not a mere checklist. Fair provision is the goal, but the principles must be followed. The principles rule over judicial precedent.
What this leads to is a rigid framework, or to put it another way: a more predictable sets of principles to help guide outcomes and thus, crucially for family lawyers: settlement.
The greater predictability of outcomes helps family lawyers to advise, and former spouses to settle without litigation and costs. At a time where the higher courts in England are critical of the costs being incurred by litigants in financial disputes, perhaps something can be learnt from Scotland. With a broad discretion comes greater uncertainty, comes a greater incentive to litigate for potential gains and so come additional costs. If the Law Commissions review of financial provision on divorce can achieve one thing, my hope would be that it creates greater certainty and predictability of outcome.
“You won’t get anything in Scotland” (Actually, you will)
The absence of any real discretion within the Domicile and Matrimonial Proceedings Act 1973 means that it is usually quite clear cut whether jurisdiction for divorce lies in England or in Scotland. As such, I am not often asked to weigh up for clients the financial outcomes in England versus those in Scotland. When I do, the operative preconception is to advise the financially better off spouse to issue in Scotland and the financially less well-off spouse to issue in England.
To an extent there is some validity to this preconception. But, as with all: it’s a little more complicated than that!
The preconception arises from the well-known rule that spousal periodical payments (Periodical Allowance (PA) in Scotland) is only payable for a maximum of three years post-divorce in Scotland. In maintenance cases, the usual advice is that the preferred divorce destination depends on whether the client is the payer or the payee.
But this is only but one element of financial provision upon divorce in Scotland. Sections 9(1)(b) and 11(2) of the 1985 Act combine to ensure that the economic disadvantage of one spouse is relevant to the financial division. Whilst PA may be limited, this opens the door to financial provision based on post-divorce hardship.
Delving this little bit deeper reveals that it is not as straight-forward as advising based on maintenance outcomes alone. What we would call a needs-based order in England could be arrived at by different means in Scotland.
However, the some case law examples seem to indicate a rather more stringent approach in Scotland than in England. Just one example: M v M  Fam LR 116 involved one spouse having an inherited estate of millions; after matrimonial assets were divided, they were ordered to pay a modest lump sum of only £250,000 and three years of (also modest) PA. In England, the magnetic nature of the needs jurisdiction of the court would undoubtedly have shifted the outcome considerably toward a sizeable lump sum and either more maintenance or a capitalisation.
Are Scottish & English family laws more alike than we think?
That all said, the sea change in English family law over the last 10 years has seen a reduction in joint lives maintenance orders, a reduction in the quantum of term orders and the prevalence of discussing needs in terms of adjusting without undue hardship.
Whilst my anecdotal notes from practice reveal that in a typical spousal maintenance case after a medium to long marriage, a three year term remains toward the lower end of the scale, the terms being advised are not miles away for a typical medium income family. Are we moving toward a more Scottish approach to what we call “needs?”
The perspectives offered in this article are drawn from a very insightful conference I recently attended, hosted by Scottish Law firm Brodies – you can find more information on the conference here. Many other revealing insights were shared and I have gathered only a few here. I disclaim this all by pointing out that I am not a Scottish family lawyer and if any of these issues resonate I would advise that you get specialist family law advice from lawyers in the relevant jurisdiction.