On the back of a landmark ruling on spousal maintenance in England, Family Law partner Jackie McRae explores how this compares with Scottish divorce law.
"Earlier this week the English Court of Appeal made a ruling in a family case which signals a significant shift in how stay-at-home wives in England are likely to be treated after divorce.
Tracey and Ian Wright, a wealthy couple with two children, divorced in 2008. The court divided their assets providing Mrs Wright with a mortgage-free property, provision for stabling her horse and their children’s ponies and maintenance of £75,000 per annum for herself and the children including payment of the children’s private school fees. Mrs Wright, a former legal secretary and riding instructor, had not worked during the marriage, and did not work after the divorce either. £33,200 of the annual maintenance sum was earmarked as spousal maintenance for Mrs Wright.
Six years after the divorce, Mr Wright applied to the court to cease the spousal maintenance he was required to pay to his former wife because he was approaching retirement and his income was about to be reduced. He would continue to pay child maintenance and the children’s school fees.
The court granted his application. Mrs Wright appealed. She argued that if her spousal maintenance was reduced the standard of living enjoyed by her youngest child would reduce significantly (the older child was a boarder at private school).
The appeal court judge, Lord Pitchford refused Mrs Wright’s appeal. The court was critical of the fact that Mrs Wright had done nothing in the six years since the divorce to look for work, retrain or to prepare herself for work. The judge indicated that where children were over seven and in full-time education it was reasonable for mothers to work in order to support themselves, and contribute to the family income, and there should not be an expectation that divorced wives should rely on their ex-husbands to maintain them indefinitely.
What does this judgment mean for Scottish cases?
Nothing at all.
The legal position established by this case reflects a position which has been held in Scotland for the last thirty years. In Scots law there is a longstanding principle that at the end of the marriage, there should be as far as possible, a clean financial break between divorcing spouses. Each party should leave the marriage with a fair share of what they have acquired by their efforts during the marriage, through work or other contributions. If one party will be much worse off as a result of the divorce - for example because they gave up a career to look after children, or to support their spouse’s career - the court will attempt to compensate for any financial disadvantage suffered by one spouse in the interests of the other. But they will do that by looking at how the assets and liabilities are divided between the spouses, rather than ordering one party to continue maintaining the other out of their income from employment.
Scots law does provide for the possibility that a spouse may need ongoing financial support, particularly early on in a separation. But financial support beyond divorce (‘periodical allowance’) will be awarded only if the assets cannot be divided up in a way that seems fair. Ongoing support is time-limited for three years, extendable for up to five years or more only in very exceptional circumstances. The aim is to provide sufficient help to enable the spouse in the weaker financial position to take whatever steps they need to take to get back on their financial feet and become independent from their former partner.
There has been somewhat of an outcry in England in response to this case with some heralding it as common sense consistent with how most couples deal with the economic realities of family life, and others suggesting that it is an attack on mothers who make career sacrifices for their families. Whatever your view, it is clear that this case marks another area of family law in which the English courts seem to be moving closer to the position in Scots law."