Reform of UK divorce law – can England and Wales learn from Scotland?
As the Matrimonial Causes Act 1973 reaches its 50th anniversary, there has been debate as to whether this legislation remains fit for purpose. Lord Bellamy KC has highlighted the need for a review of the law surrounding divorce and the news of possible changes to the system has been welcomed by some members of the profession and those who have had first-hand experience of the system.
In most cases, the key issue is usually how the needs of any children (followed by those of the separating couple) will be met. Judges are given a great deal of flexibility to ensure cases are dealt with fairly. However, the dependency of English and Welsh family law on ‘judge-made’ law rather than on written legislation has become a focal point of criticism. The system causes uncertainty and widespread variation in how the law is interpreted not just by different judges, but also regionally in different courts. It is hard for a separating couple to know where to start and this can cause tremendous stress and anguish for those involved. Critics argue that our current discretionary system only encourages litigation.
I can’t help but compare the more elastic system in England with what is often viewed as a tougher, and more rules-based system in Scotland. Scottish family law legislation (primarily the Family Law (Scotland) Act 1985) places great importance on the distinction between matrimonial and non-matrimonial property. Matrimonial property is defined as property owned by the parties at the date of separation, which was acquired during the marriage, or before the marriage for use as or in a family home. Gifts or inheritances to one party (even during the marriage) will not usually be matrimonial property unless they meet limited exceptions. The system can result in seemingly unfair results for those who fall through the cracks of the legislation, but there is on the whole much greater certainty.
The two jurisdictions also have a different approach to maintenance. The most prominent is arguably the possible duration of payments. In Scotland, payments will rarely be awarded for more than 3 years unless the spouse due to receive payments can satisfy the court that they will suffer serious financial hardship. In practice this has been a very high bar to overcome, as it requires a specific justification such as an ongoing disability which results in that spouse being unable to work.
By contrast, there is famously no set duration for awards of maintenance in England. In practice ‘joint lives’ maintenance orders are now very rare, with judges usually expecting most working age spouses to return to employment or adjust financially to the separation within a few years. However, there is no strict time limit which leads only to invariably different interpretations as between spouses, legal teams and judges as to what period is appropriate.
Progress in the field of family law has generally been slow, and we eagerly await an announcement on further updates to the legislation in this area. Since every case turns on its facts, the English system’s flexibility means judges have powerful tools at their disposal to help resolve disputes. Notwithstanding this, there still could be greater clarity in some discrete areas with demands for clearer rules on maintenance and prenuptial agreements which practitioners and clients alike would be receptive to.
If you have any questions, please contact Suzanna Brown.