Principles in Practice: financial provision on divorce in Scotland

Mair, J. (2017) Principles in Practice: financial provision on divorce in Scotland. World Congress on Family Law and CHildren's Rights (WCFLCR 2017), Dublin, Ireland, 04-07 Jun 2017. (Unpublished)

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Scots law of financial provision on divorce is now 30 years old. The Family Law (Scotland) Act 1985 is one of the best known and most respected elements of the Scottish family law system and yet, for something so significant and familiar, it has attracted comparatively little attention from researchers and commentators. The 1985 Act was designed to address the mischiefs of the previous legal system and to achieve explicit objectives. Particular problems, which had been identified in respect of the pre-1985 law, included a lack of clear guidance, too much judicial discretion, restrictions on the orders which courts could make and an over-reliance on continuing periodical allowance. The Scottish Law Commission considered that “[w]hat financial provision on divorce should seek to achieve is fundamental to the type of legal provision governing it” and, although they concluded that no single objective was appropriate, they did identify a range of objectives which included the desirability of achieving a clean break between the parties. The resulting detailed statutory framework of the 1985 Act - “a highly sophisticated system” (Sutherland) - was designed to achieve these objectives by means of a carefully constructed jigsaw of orders, principles and guidance. The legislation was carefully planned and well drafted but how well has it worked in practice? One of the aims of the SLC, in designing the 1985 Act, was to increase the willingness of couples to reach agreement and to reduce the need for judicial resolution. To that extent, the Act has worked in that there are relatively few reported cases but while there are undoubtedly many benefits in settlement, the lack of published judgments makes it more difficult to see how the legislation is used. While the 1985 Act has been generally well-received over the past three decades, it has also attracted some criticism and raised some questions. Compared with the English law on ancillary relief, its principled framework appears to leave little space for judicial discretion. While its preference for a clean break settlement fits well with modern, simple no-fault divorce, Scots law has been criticised for being unduly harsh on the ‘homemaker spouse’. While certainty and clarity about the law has undoubtedly been achieved, has it been at the expense of fairness? In a recent study, funded by the Nuffield Foundation – Mair, Mordaunt and Wasoff, Built to Last - we analysed a sample of 200 reported cases on financial provision, spanning the 30 years during which the 1985 Act has been in force, together with in-depth interviews with solicitors, advocates and judges. Using findings from that research, this paper will explore how the statutory principles of financial provision work in practice.

Item Type:Conference or Workshop Item
Glasgow Author(s) Enlighten ID:Mair, Professor Jane
Authors: Mair, J.
College/School:College of Social Sciences > School of Law
Copyright Holders:Copyright © 2017 The Author
Publisher Policy:Reproduced with the permission of the Author
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Project CodeAward NoProject NamePrincipal InvestigatorFunder's NameFunder RefLead Dept
622971Principles in Practice: financial provision on divorce in terms of the Family Law (Scotland) Act 1985Jane MairNuffield Foundation (NUFFIELD)N/ALAW - LAW