By Alexandra Gell, Trainee Solicitor

A recent ruling from the Court of Appeal in England may well, at first blush, cause concern for anyone who is divorced or considering it. This brief blog aims to assuage the concerns of those in Scotland who may have read about the recent English verdict, or others that have made the news in recent years.

Background and Verdict of Mr and Mrs Mills’ Case

Mr and Mrs Mills, 50 and 51 respectively, were married for 13 years and divorced in 2002. On divorce, Mrs Mills was awarded a capital sum of £230,000 in addition to ongoing maintenance of £1,100 per month from Mr Mills. Through poor property investments in London, Mrs Mills lost all of her money and fell into debt.

The Court of Appeal increased Mrs Mills’ maintenance from £1,100 to £1,441 and order that Mr Mills must make these payments for the rest of Mrs Mills’ life. There have been calls for the law to be reformed in England to limit maintenance payments. Mr Mills’ QC, Philip Cayford, commented that: “It is wrong in principle and in law that the wife should continue to depend, and indeed seek to increase, her dependence on the husband.”

What does this verdict mean for Scotland?

As a Scots Lawyer, it is difficult to imagine a Scottish Court issuing a verdict such as the one described above as a cornerstone of divorce law in Scotland is the “clean break” principle. An order to pay your ex-spouse maintenance for the rest of their life would be at complete odds with the ethos that underpins Scottish divorce legislation.

Under the Family Law (Scotland) Act 1985, there are only two bases upon which a spouse can seek an award of maintenance after divorce – known as periodical allowance in Scotland. These are to allow a former spouse to adjust to any loss of support and/or to alleviate serious financial hardship caused by the divorce.

An order for periodical allowance allows the spouse that has been dependent to a substantial degree on the financial support of the other to be awarded, if reasonable in the circumstances, a sum of money to enable them to adjust. Scottish Courts are inherently cautious of making an order for periodical allowance upon divorce. A Scottish Court will only make an order for periodical allowance if they are satisfied that capital awards are inappropriate or insufficient to ensure a fair sharing of the matrimonial property. An order for a periodical allowance in these circumstances is limited to a maximum of three years, although in practice when such an order is made it is often for a much shorter period of time. The limited scope is to encourage a “clean break”, so that ex-spouses cease to be economically reliant on each other. Scottish Courts are required to utilise their power to order the payment of a capital sum, sometimes by instalments, rather than an order for periodical allowance, if the resources of the paying party are sufficient to allow this. The ethos of this provision is to encourage financial independence following divorce.

In the event that a spouse is likely to suffer serious financial hardship as a result of the divorce the court may grant an award of periodical allowance as is reasonable to relieve that spouse of hardship over a reasonable period. This provision leaves the door open for longer financial support than is possible under a claim based on adjustment to loss of support. Although there is no strict time limit to this provision, the threshold to prove serious financial hardship is very high in Scotland; especially where lifelong support is being sought. In England, the courts can take into account the lifestyle a spouse has become accustomed to; although the test in Scotland is still subjective, the courts are less likely to give as much weight to lifestyle as their English counterparts. Such orders based on serious financial hardship are rare, and most have been granted only where the dependent spouse has serious health problems. This obligation ends on the death or re-marriage of the dependent spouse.

With the above in mind, whilst a somewhat surprising decision even in England, the verdict should not cause too much concern to those divorcing or considering divorcing in Scotland. Although such awards are possible under the Act, case law to date does not support the likelihood of such a decision ever being taken in Scotland and certainly not years after the divorce.

If you would like more information regarding ongoing financial support after divorce or any other services we provide, please contact a member of our Family Law Team on 0131 228 8111 or at FamilyLawTeam@turcanconnell.com.