Wednesday, February 20, 2008

Scottish Divorcees Struggle

Whilst England has the reputation as having the most favourable divorce regime towards women in Europe Scotland is thought by some to have one of the least favourable. The differences were highlighted in Scotland on Sunday how women are often left to struggle after a 'clean break' because there is less scope for courts to award assets in their favour due to disadvantage or special circumstances. Also when payments for maintenance in Scotland are made, unless there are very exceptional circumstances, they are for a maximum of three years to allow for a period of readjustment.

There has been much controversy in legal circles over this issue. In 2006 Lord Hope of Craighead attacked the current Scottish principles in his comments in the English case Miller v Miller; McFarlane v McFarlane [2006] UKHL 24 and thought they needed to be reconsidered in the interests of fairness as soon as possible. However, Kenneth Norrie, Professor of Law and Head of the Law School at Strathclyde University argues Lord Hope misinterprets Scots law, and that it can achieve exactly what Lord Hope stated it could not do. Kenneth Norrie argues that the certainty of Scottish legislation encourages pre-court settlement and his reasons not to amend were outlined in the Law Society of Scotland's Journal July 2006 edition.

"First, s 9(1)(d) should be amended in order to extend the three year period if, in exceptional circumstances, the judge finds that the disadvantage of reduced earning capacity ought to be compensated out of the other’s future income because the capital needed to provide this is not available. But this is not needed because other principles in s 9 (bearing in mind the inclusion in s 9(2) of future earning capacity, and the instalment provision in

s 12(3)) can achieve precisely the compensation sought. In my view removing the three year limitation to s 9(1)(d) would seriously compromise the clean break principle – as well as being a denial of the reality, accepted by their Lordships in Miller; McFarlane, that it is usually impossible for both parties to maintain existing standards of living after divorce.

Lord Hope’s second suggestion is to allow a periodical payment to be made under s 9(1)(b) (a principle he never, in fact, discusses). This would not so much compromise as remove completely from our law the idea of a clean break on divorce."

No doubt the debate is going to rumble on for sometime.


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