Family law: Scotland v England, it’s not a level playing field!

  • Insight

05 December 2018

Family Law and divorce are treated very differently north and south of the border. For example, under Scottish law there are rights for cohabitants, there’s a maximum period for spousal maintenance and there’s a shorter period of separation needed for a divorce. 

Recent high profile cases discussed here give a real illustration of the differences between family law north and south of the border, with outcomes that might have been different if the couples had been in Scotland. 

The woman who couldn’t get divorced

The Supreme Court case of Owens -v- Owens was widely reported in the press. Mrs Owens was not able to divorce her husband on the grounds of unreasonable behaviour because her allegations about his behaviour were said to be ‘too anodyne’, flimsy, or considered to be exaggerated. Essentially, the court held that what Mrs Owens sought to prove about her husband were not enough to reach the threshold of ‘unreasonable behaviour’.

Now, that is exactly the same position in Scotland.  Unreasonable behaviour needs to be alleged in the court documents and the allegations need to be proved. They then must be of a type which meet the threshold to constitute unreasonable behaviour. 

Where Scotland is different, however, is that had Mrs Owens lived in Scotland, she could have divorced her husband on the basis that the parties had lived apart for over two years. In England, the equivalent provision needs five years separation - a long time by anyone’s standards. Following this case, there is now a consultation in England about 'no fault' divorce.

In Scotland, the rules were changed in 2006 when the five-year non-cohabitation divorce became two years. For parties involved in a divorce, it is much more tolerable to wait two years. In fact, often it takes a fair proportion of that time to sort out and make arrangements for money and for children. As a result, in Scotland, most divorces happen either under the two year non-cohabitation provision, or the even shorter time one year non-cohabitation if the other party consents. 

Clearly Mr Owens would not have consented and so a divorce after one year wouldn’t have happened. However, waiting for just two years, instead of the five she faced, would certainly have helped Mrs Owens. 

Spousal support - a costly stale-mate

Another Supreme Court case -  Mills –v- Mills  - dealt with an application by a former husband to vary the maintenance payments to his ex-wife. The couple had divorced in 2002. The report of the original court case made it clear financial order, which both parties had consented to, was for a specific purpose: to allow the wife to buy a house mortgage free. However, the wife had made different decisions and eventually presented to the court with no capital left and seeking an increase in maintenance to help her to meet her monthly bills including rent. Mr Mills wanted the payments reduced. Mrs Mills wanted the payments increased. 

Initially the trial judge refused to change the payments either way. On appeal, however, the Court of Appeal increased the maintenance payments. In the Supreme Court, the grounds of appeal were very narrow and focused on the extent to which, if at all, it was fair to expect the husband to fund payment of the ex-wife’s rent in full when the original capital settlement would have left her mortgage free but for her own poor financial management and unwise decisions. The outcome was that the payments were not increased, but neither were they reduced. 

Here in Scotland this sort of case really is extraordinary. Financial maintenance for a spouse – known as aliment - can be paid if there is a need. And then, after divorce, aliment can be paid by way of an order for Periodic Allowance if there is still a need. This is assessed by having regard to, amongst other things, the capital settlement. But any periodic allowance is usually for a maximum of three years after divorce, with some very limited exceptions to this. While divorcees will often paying child support for many years, and will expect to do so, it’s rare that there will be an ongoing maintenance payment to an ex-spouse for more than a few years after divorce. 

The next generation see things differently

In this day and age, is there any basis for a spouse to be paying maintenance to their ‘ex’ some 10, 15 or 20 years later? Is there any basis for a former spouse to expect to be maintained over this period?

While we can see that much older couples may have certain expectations when separating, Millennials today have different expectations. Most prefer cohabitation before marriage or civil partnership and may not seriously expect to maintain their spouse until ‘death or remarriage’? It is surely time for family law in England to recognise that there must come a point after divorce when each has to take responsibility for themselves. 

In Scotland the principles which underpin the Family Law (Scotland) Act 1985 are for fairness to be achieved between a couple. While not everyone going through a divorce in Scotland feels that their particular outcome was necessarily ‘fair’, the general view amongst practitioners and academics is that the 1985 Act is a good one, forward thinking for its time and, allows a bespoke outcome for each couple. The Family Law (Scotland) Act 2006 updated the law and also gave us cohabitants rights, something else that the English system is considering but hasn’t yet introduced. 

Perhaps those reviewing family law in England could look north of the border where we can offer some forward thinking in divorce.

If you’d like more information about how the law in this area affects your particular family circumstances, get in touch with our expert family solicitors who can help.

For more information on this topic, contact