Is England About To Follow In Scotland's Footsteps When It Comes To Divorce?
Gillian Crandles & Jenny Jarman-Williams wrote for High Net Worth Divorce Magazine.
England has earned a reputation as the “divorce capital of the world” for its often-generous financial settlements, particularly in relation to spousal maintenance. This is partly because the English Judges have more discretion than most other countries and partly because the English system favours the financially weaker party. Scotland on the other hand is viewed as being rules based and significantly less generous. All that may be about to change.
The Law Commission’s Review
The Law Commission (England and Wales) has started reviewing the current law to establish if it is working effectively and delivering fair and consistent outcomes for divorcing couples. As part of that they are going to analyse the current laws on financial remedies, determine whether there are problems with the current framework which require law reform, and consider the financial orders made by the Courts in England and Wales. They will compare the law in England against the law of other countries, including Scotland. The review is broadly framed but the Law Commission is widely expected to explore if the English Courts should move away from their discretionary system to a more rules-based system like Scotland, France, and the majority of Western countries. At this stage it is a preliminary review, but the scoping paper is expected to be published in November 2024 and it could provide the basis for a full review with substantive recommendations for reform.
The Arguments For And Against Reform
There was close to unanimous support amongst English family lawyers for the introduction of no-fault divorce and there is strong support for the reform and modernisation of the law in relation to unmarried cohabiting couples, surrogacy and, to a lesser extent, prenuptial agreements. However, when it comes to financial remedies on divorce any change appears to be deeply controversial. The mere fact the review is taking place tells us there are influential voices arguing reform is needed. Other well respected family lawyers feel strongly that the status quo should largely prevail. While they support more modest procedural changes, they openly say that changing the underlying law is not the best answer. Tim Bishop KC, an experienced English Family Law Barrister, recently wrote an article entitled “Fixed rules for division of matrimonial assets a formula for disaster”. His view is that any move to a more fixed set of principles would be “a waste of time and money” and that “worse, a one-size-fits-all, formula based approach would result in unfairness”. He believes that “what we have in England and Wales is a sharing system with clear principles but with the flexibility to deal with needs and with hybrid assets”. His view is supported by another prominent barrister, Samantha Hillas KC. She writes “ I do not agree that repealing [the current law] and replacing it with [a new one] would do anything other than create confusion for everyone involved in financial remedies work and substantially more work for lawyers.” She argues that it is better to focus on making the current process quicker, publishing more Judgements so people can see how other cases have been decided and increasing the use of non-court dispute resolution rather than “suggesting we rip everything up and start again”.
On the other hand, there are those who support change, such as Baroness Ruth Deech. She commented “No defender of the current system (which, incidentally, has taken 50 years of money wasting litigation to get to the place that Bishop claims is settled) has ever been able to answer the question – why is England alone in the western world in having an uncertain system? Scotland introduced set rules over 30 years ago and is very satisfied with them”. A key question is how much discretion a Judge should have. Some believe significant discretion is crucial in family law cases because it allows Judges to look at the couple’s unique situation and assess what is fair for them. Others equate discretion with inconsistency, uncertainty, and cost. One Judge’s view of “fair” could be very different from the next, and that unpredictability can fuel litigation and lead to significant legal fees. It will be some time before we know what direction the English will take, but turning their back on a discretionary system and moving to one more like Scotland’s is undoubtedly one possibility.
The View From Scotland
Baroness Deech’s assessment that Scotland is “very satisfied” with our rules is, in general, a fair one. Scotland has a well-established set of rules, but there is still scope for flexibility within them and it would be wrong to characterise the Scottish system as rigid in the same way as the child maintenance rules for example. While the Scots would give a positive appraisal of our system, it is for the English to decide the right way forward for them. Who knows, they might introduce something even better that we in turn will adopt in the future.
