Family -Law

In an article appearing in The Financial Times on 30th December, Baroness Deech, the Peer chairing The Bar Standards Board which monitors standards, training and education for barristers, has criticised divorce law in England and Wales as presenting a"bad message" to young women. She told the Financial Times that"we have a whole area of law which says once you are married you never need to go out to work, [that] you are automatically entitled to everything you might need even if that marriage breaks down and it's your fault". Her criticism is not one which could be easily levied at the law in Scotland.

In Scotland, parties are only entitled to share in the wealth that has been built up (other than by inheritance or gift from a third party) during the marriage. Whilst spouses have an ongoing obligation to financially support one another up until the point of divorce, financial support for a spouse after divorce is not awarded lightly by the Scottish courts.

A fundamental principle of Scottish family law is that each party should only be entitled to share in"fruits of the marriage" and not what the other spouse might go on to achieve following divorce. The Scottish system is thus based on there being a"clean break" between the parties after divorce. Unless a spouse will suffer severe hardship following divorce caused by, for example, a debilitating physical illness, support of a spouse after divorce will be granted for a maximum of three years in Scotland, and in the vast majority of the cases will not be granted at all.

In Scotland therefore it certainly could not be suggested that marriage is the key to lifelong financial security, and while one can understand Baroness Deech's criticisms of the generous financial provision often awarded to spouses in England and Wales, others might argue that the Scottish system does not well serve spouses coming out of marriages late in life with no employment prospects where they have been reliant on their spouse throughout a long marriage, the assets to be divided are minimal and there is little prospect of securing long-term financial support.

There are many difficult issues surrounding financial support following separation and divorce and if you require any further assistance you should contact a member of our Family Law Team.



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