s9 Principles

Scots law favours certainty to encourage pre-court settlement of financial provision on divorce and underpinning the Family Law (Scotland) Act 1985 is the "clean break" to encourage the readjustment to a lower standard of living or a return to independence. The courts are directed to ensure that the financial provision awarded is reasonable having regard to the resources of the parties. This discretion is limited by the principles set out in section 9 of the Act;-

(a) the net value of the matrimonial property should be shared fairly between the parties to the marriage;

(b) fair account should be taken of any economic advantage derived by either party from contributions by the other, and of any economic disadvantage suffered by either party in the interests of the other party or of the family;

(c) any economic burden of caring, after divorce, for a child of the marriage under the age of 16 years should be shared fairly between the parties;

(d) a party who has been dependent to a substantial degree on the financial support of the other party should be awarded such financial provision as is reasonable to enable him to adjust, over a period of not more than three years from the date of the decree of divorce, to the loss of that support on divorce;

(e) a party who at the time of the divorce seems likely to suffer serious financial hardship as a result of the divorce should be awarded such financial provision as is reasonable to relieve him of hardship over a reasonable period.



Reference; Family Law in Scotland Joe Thompson

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Inheritance Tax Appeal

The European Court of Human Rights in Strasbourg ruled today that two elderly sisters, who have lived all their lives together, are not discriminated against under UK inheritance tax rules. According to the Herald it was upheld that national governments have some discretion over taxation. I have no doubt that legally this was the correct decision, but I have a great deal of sympathy for the two women, one of whom will lose their home to pay inheritance tax when the other dies.

Inheritance tax isn't particularly fair to single parents who are not on the breadline either - or rather to their children who may loose out when only one parent can utilise the inheritance tax allowance.

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Pension Valuations

Pension rights fall into three main categories:

State scheme pension rights
State scheme benefits can be acquired in the basic state pension, the state earnings related pension (now the state second pension), and the graduated pension scheme. Valuations can be obtained from the Department of Work and Pensions.

Personal pensions (including stakeholder pension schemes)
Personal pensions can be effected by both the employed and the self employed.

Occupational schemes
Pension rights can only be acquired in occupational pension or employer-sponsored schemes, which include final salary schemes, when in employment.


Cash equivalent transfer values
The basis on which pension rights are valued for divorce purposes is the cash equivalent transfer value (CETV) that would have been payable on the relevant date. The CETV is a value that can usually be obtained easily from pension scheme administrators. However, CETVs will often not take into account matters such as discretionary benefits, even where there is a very high likelihood of payment, or death in service benefits. Thus CETV’s often undervalue the pension by as much as a third, particularly if the pension is final salary or related to salary. Although Courts are directed to the CETV other matters maybe taken into account when supported by expert evidence.


Importance of date of separation
It is worth bearing in mind that the CETV can change very quickly over short periods of time, and indeed in the uniformed services (e.g. armed forces, police, firemen) on specified single days.

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Judge's Nasty End

Georges Brassens song. For non French speakers the great, late Jake Thackray did a version in English.

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Single Parent Families

In an earlier post I expressed my concern about single parents families, and in particular children from broken homes, being stigmatised so it was interesting to see an article about the the long-term effects of growing up in a family with only one parent in the Telegraph today. In common, the three divorced mothers interviewed work, receive little in the way of financial support from the children's fathers and haven't re-partnered. Two out of three of the teenagers interviewed had initially had contact with their fathers but this had waned over the years.The third still had regular contact.

The children's memories of their parent's marriage breakdown are all very sad and what they say below demonstrates the impact their parent's relationship breakdown has on young people. However, they are far from social misfits with behavioural problems and are a credit to their parents.

Lucinda, 15. "It's not what your parents are doing that makes you a person. It's who you are and how they bring you up.

I can't imagine wanting to get married. It's nice to meet someone new, to have your first kiss and first date, but if you got married, you'd only be with one person."

Josh, 14. "We're not poor, but we're not rich either. I think that has helped me to understand the importance of money. Mum always says I’m a good saver. When Mum is doing well she will give me canteen money, but if she is not doing so well she will make me lunch boxes.

I think it's made me better with people, because I always try to get along with everyone – I know that falling out can have big consequences, although at first it may not seem so."

Jeremy, 16. "I do my laundry and ironing, empty the bins and mow the lawn – but I don't think we do enough around the house. Mum gets stressed. I think she is courageous and is probably more hard-working than other parents, and that means a lot to me.

It hasn't put me off marriage. It's probably made me want to get married more. I know what I don’t want. I know what husband I don't want to be. Like my dad. He just doesn't seem to put any effort into anything. He just doesn't seem to care."

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Good Childhood Inquiry

Did anyone else spot this in the Times yesterday? Stephen Scott, a professor of child health and behaviour at the Institute of Psychiatry, King’s College London, who is one of the authors of the report, said about divorce and the increase in children's mental health problems:


“It is as much about the problems arising from family breakdown as the event itself. Young people don’t like being in different homes on different days of the week and get upset by strife between their parents.”

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Lawyers Industrial Action

As reported by the Law Society Scotland's Journal the Glasgow Bar Association voted last night for industrial action in protest against the Scottish Government's plans to reform legal aid. Lawyers complain that the rates have not risen for nine years.

In my experience it is becoming very difficult to find a solicitor prepared to take on legal aided clients. Recently I was trying to help a househusband find representation for a family case and eventually only found a criminal lawyer prepared to take on the case!

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Matrimonial Property

As I said in my earlier post Joint Minute of Agreement in Scotland the financial matters normally need to be resolved before the court may grant divorce. Matrimonial property is that accrued between the dates of marriage and separation and there are 4 steps to take before deciding how the assets should be shared.


1. Establishing the date of separation on which the married couple cease to cohabit as man and wife.

2. Identifying all the assets owned jointly or individually by a couple at the separation date including the house, furnishings, a car, pensions, savings and investments and   any outstanding liabilities (mortgage, car finance, personal loans, credit card debts etc) in existence on the date of separation.

3. Determining any non matrimonial property by looking at the individual assets and seeing the circumstances in  which they were acquired. Assets owned by either party before the marriage or those gifted or inherited are not matrimonial property.


4. Valuing matrimonial assets as at the date of separation, for example, by providing statements for savings, asking insurance companies for surrender valuations of endowments and pension providers for the Cash Equivalent Transfer Value. Endowment policies and pensions started before marriage are apportioned for the years of the marriage. It's best to have agreement before having the house valued by a Chartered Surveyor. The liabilities are deducted from the assets to provide the net value of matrimonial property.


Hint: It can be a great assistance to your lawyer and help to keep your costs down if you can collect documents and keep them organised to produce in a timely manner when required. Please avoid doing what I did. Due to computer incompatibility at the time I wrote out a draft schedule of our assets on a page of my daughter's school jotter for my solicitor and as time went on this much amended and photocopied sheet haunted me. A spreadsheet which can be updated is a far better idea.

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Aliment

Under the Family Law (Scotland) Act 1985 there is a general obligation to provide support "as is reasonable in the circumstances" by a husband and wife to each other, a natural parent to their child and a person to a child who has been accepted by him as a child of his family. This is known as 'aliment' and could apply equally to the situation when husband and wife or parent(s) and child live together as when they are separated. As mentioned in this post a child is defined as a person under the age of 18 years or over that age and under the age of 25 years who is in education or training.

Claims for aliment may be made in either the Court of Session or the sheriff court unless the court considers it inappropriate in any particular case. In determining the amount of aliment to award the court is directed to regard the needs and resources of the parties, the earning capacities of the parties and generally to all the circumstances of the case. On an application to court by or on behalf of either party an order or agreement for aliment may be varied, recalled or terminated if there has been a material change of circumstances.

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Violent Women

Further to this post about domestic violence Scotland's Lord Advocate Elish Angiolini warning more women were using aggressive behaviour and committing violent offences is headline news in the Herald today.


She suggests the violence is related to drink, and in particular binge drinking, adding "that compared to the number of men who committed such offences, the number of women doing so was a "very small number".

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Mediums Act Repeal

"Shss! He getting advice from Ramsay MacDonald"

Nothing to do with divorce, but I liked this caption on Peter Barnett's post, Psychic New Labour, yesterday. It was related to a protest march on Downing Street by fortune-tellers, mediums and spiritual healers protesting against new laws which will remove key legal protection for "genuine" mediums. About time the Fraudulent Mediums Act 1951 was repealed, given the psychic industry is big business and it exploits some vulnerable people with claims for which there is no scientific evidence. The newspapers have had a field day suggesting spiritualists should have seen it coming.

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Female Lawyers & Judges

Thanks to the Law Society of Scotland's Journal for highlighting a survey which puts law at the bottom of the league table for mothers returning to work and an article about the Judicial Appointments Board for Scotland looking at why there are so few women and people from ethnic minorities applying for senior judicial roles.

According to the Training and Development Agency for Schools survey career break mums see a job in education as best suited to working mums. From the survey of 11 sectors the legal profession was seen as one of the worst jobs for mothers returning to work. Only 26% of employees in the legal profession compared to 48% of teachers will return purely for the love of the job.

This article in the Scotsman reports an inquiry into the dominance of white middle class men in the judiciary is damaging the public reputation and credibility of judges. Sir Neil McIntosh, chairman of the Judicial Appointments Board for Scotland, is quoted as saying that he believes women have as much chance as men of becoming senior judges, but not enough are putting themselves forward. The investigation will look at the factors it believes may work against women. Thankfully, in my opinion, a quota system has been ruled out.

Only four of Scotland's 35 serving senior judges are women (11%) and none are from ethnic minorities. Of the 140 full-time sheriffs, 26 are women and only one from an ethnic minority.

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Child Support & Credit Ratings

Thanks to a poster on the Ondivorce forum for providing this link to an item on the New Law Journal website regarding the report ‘Child Maintenance and Other Payments Bill: Disclosure of information to credit reference agencies — exploratory analysis’

This paper examines the feasibility of sharing child maintenance payments with Credit Reference Agencies to provide additional incentives to non resident parents to meet their legal obligation. Firstly child maintenance compliance and compliance with financial products (such as bank loans or credit cards) is examined before looking in more detail at customers credit history when they have and do not have arrears registered.

It sounds a good idea but can the organisation replacing the Child Support Agency, C-MEC, be more efficient and well enough administered to target the right people?

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Will I be Barred

A new addition to my blogroll is Will I be Barred by mature student Swiss Tony who completes his Graduate Diploma in Law shortly and has been offered a place on the Bar Vocational Course. Swiss Tony became interested in law after an acrimonious divorce and acting as a McKenzie friend. Something tells me the world of blogging is never going to be the same again!

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Mole Man

Engineers hate risk. They try to eliminate it whenever they can. This is understandable, given that when an engineer makes one little mistake, the media will treat it like it's a big deal or something. For example, Hindenberg, Apollo 13, and the Tay Bridge. And now 'Mole Man's' subterranean hobby. The Telegraph reports William Lyttle, a retired engineer, who created a labyrinth of tunnels under his house over 40 years has been forced to pay £300,000 for repairs carried out by a council and has an injunction imposed against him preventing him from undoing any of the repair work. Evidently his load bearing calculations were not quite up to scratch!

Why do people not understand to the engineer, all matter in the universe can be placed into one of two categories: (1) things that need to be fixed, and (2) things that will need to be fixed after you've had a few minutes to play with them. Engineers like to solve problems. If there are no problems handily available, they will create their own problems. Normal people don't understand this concept; they believe that if it ain't broke, don't fix it. Engineers believe that if it ain't broke, it doesn't have enough features yet. Engineers have the ability to concentrate on one subject to the exclusion of everything else. This certainly appears the case with Mole Man's home improvements.

However, concentrating on one subject to the exclusion of everything else is a disaster in any relationship. Neglect, whether intentionally or unintentionally, causes the person whose needs aren’t being met to feel angry, offended, ashamed, demeaned, and unsafe. This is a terrible position to be in and it is the reason behind many extramarital affairs. Healthy relationships seem to rely on both parties being independent and enjoying time in each others company.

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Reforms Not Working

Following on from the announcement that an increase in dedicated domestic violence courts is planned and concerns raised by the Association of District Judges that recent reforms to curb domestic violence in England & Wales has brought about an estimated 25-30% drop in applications for non-molestation orders the Times reports a there is to be an urgent meeting between Jack Straw, the Justice Secretary, and Sir Mark Potter, President of the Family Division.

The rationale offered is either offenders of domestic violence have changed their behaviour or survivors ('victim' isn't in my vocabulary!) do not want to criminalise the perpetrators. Other possible explanations I can think of might be perpetrators or/and those who make false allegations have been deterred because breaching a non-molestation order is now a criminal offence . Also mentioned was judges found perpetrator treatment programmes effective but there were severe delays. I suspect that boils down to the UK wide problem, lack of funding.

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Relate

This year is the 70th anniversary of Relate, formerly known as the Marriage Guidance Council, and the Sunday Times reports today on the opening of it's archives. In 1938 the Marriage Guidance Council formed and the first local branch opened in Slough during 1949. The article focuses on the notes kept by a male voluntary marriage guidance counsellor, Mr Wallis, and the development of the organisation and professionalism within it. The notes record the acceptance of domestic violence, the domineering mother-in-law, and the tolerance of some men towards their wives' affairs. In one case there is further acrimony when the family cat eats a husband’s hamster!

In the early days the emphasis of the MGC was on guidance to preserve marriages although today Relate supports people through separation and divorce. Not only is couple counselling on offer but also services for individuals, children, family counselling, mediation and sex therapy. I have added Relate Scotland to my resources links. Peter Bell, Relates current head of practice points out “Sometimes, through counselling, they come to the realisation that the emotional cost of breaking up is greater than the price of staying together.” Interestingly he also comments that in the last 10 years there have been a lot of men finding sex unrewarding. He adds "Male confidence, as the gender who knew how to have sex – always an illusion – has been blown."

Some food for thought, the article ends with the Rules for Marriage by the Rev Louis A Ewart, founding member Marriage Guidance Council;-

1) Always tell the truth
2) Love, goodwill, wisdom and understanding are absolutely required
3) A sense of humour is quite necessary
4) Respect each other and each other’s desire for privacy
5) Be tolerant — outward appearances are often deceptive
6) Be patient; it is foolish to fuss about small things
7) Never let the sun set on your anger, no matter what may happen during the day; never forget the goodnight kiss
8) Avoid self-consciousness and false pride. Both are stumbling blocks on the road to married happiness
9) Remember that marriage is a game that must be played on a 50-50 basis; in other words, give and take, bear and forbear
10) Always be companionable and do not forget to smile — this is of vital importance

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House Prices

The Herald reports today that Scotland's house prices increased by 5.3% in the last year and 0.2% in the past 3 months. Although this signals a cooling down it does appear Scotland may escape a house slump again as it did in the 1990s. One small mercy for divorcing couples.

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Stigma

In a speech reported in the Scotsman on Saturday Mr Justice Coleridge warned "What is certain is that almost all of society's social ills can be traced directly to the collapse of the family life." My understanding is it is impossible to draw conclusions from reliable published data and my concern is that such views stigmatise single parent families, in particular the children. Actually in the address given at the Resolution National Conference the Judge did say "In some of the more heavily populated urban areas of the country Family life is, quite frankly, in meltdown or completely unrecognisable." which might be nearer the truth.

The media have ignored the fact that the thrust of Mr Coleridge's speech was a protest at the lack of funding for the family justice system in England & Wales and the way it is mismanaged and neglected by government.

Updated 4/9/08: The speech is available here.

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Tunes for Every Occasion

Tonight I went to a performance by the talented Julie Fowlis. Duncan Chisholm (playing fiddle in the video) came up with a pretty good reason to divorce when he translated a Gaelic tune title as "Cut Your Toe Nails Before you Make a Hole in the Blanket."

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Easter Holiday

For the last 14 years I've helped to organise this music event for 120 young people during the school Easter holidays. This is now part of Ceilidh Culture, one of Edinburgh's festivals which I also helped to get off the ground, so this week is proving difficult to post. If I manage to survive keeping pace with the under eighteens during the day and the twenty something music tutors and volunteers in the evenings I'll start blogging again soon.

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