Spousal Maintenance in Scots Family Law

By Fotheringham, John M. | Houston Journal of International Law, Summer 2019 | Go to article overview

Spousal Maintenance in Scots Family Law


Fotheringham, John M., Houston Journal of International Law


I.THE ROLE OF PERIODICAL ALLOWANCE  II. THE MODERN LAW OF FINANCIAL PROVISION IN SCOTLAND        A.   Section 9(1)        B.   The Relevant Date        C.   Quantum... s9(1)(a)        D.   Quantum... s9(1)(b)        E.   Quantum... s9(1)(c)        F.   Quantum... s9(1)(d) & (e)  III. CHANGE OF CIRCUMSTANCES--VARIATION  IV. PRIVATE ORDERING  V. CHALLENGES TO PRE--OR POST--MARITAL AGREEMENTS        BETWEEN SPOUSES  VI. STATE FUNDING OF SEPARATED PARTIES  VII. CONCLUSION 

Scots Law is proud of its system of financial provision on divorce. The system put in place by the Family Law (Scotland) Act 1985 has remained in place, minimally amended, since it came into force in September 1986. This has not been the result of legislative inertia but rather the effect of the strength of the statute and its practical blend of certainty and flexibility. We should not be so proud of the system it replaced, nor of the fact that that older system lasted so long.

This article begins with an analysis of current law from a historical perspective before turning to the statutory basis for periodical allowance and 'the five principles.' Afterward, the article will describe the statute's central concept--the Relevant Date.

I. THE ROLE OF PERIODICAL ALLOWANCE

Modern Scots Law relegates spousal maintenance (which we call periodical allowance) to a subsidiary role. The court should make no order for periodical allowance at all unless the circumstances of the case make it impossible to achieve a just solution by the payment of a capital sum, a property transfer order, a pension share, or a combination of these. The policy underlying this is the discouragement of any return to the court for any change to the order following a material change of the parties' circumstances. Modern Scots Family Law loves certainty, but it adores the Clean Break.

Before 1964, Scottish law had no provision for periodical allowance following divorce. (1) Instead, the court had only the power to award a capital sum. (2) If the paying spouse was wealthy then the court had scope to do justice, but if he (and it was almost invariably a 'he') was without capital then no award at all could be made, even though he may have been a high earner. (3) The law treated the 'innocent' spouse as if the "guilty" spouse had died, leaving the 'innocent' spouse with what would have been the "guilty" spouse's intestate estate. (4)

The Divorce (Scotland) Act 1964 brought the matter more up to date but still rendered it impossible for the 'guilty' spouse to receive any financial provision at all. (5) The result remained unsatisfactory because of the difficulty of assigning guilt between the parties. As any experienced family law practitioner knows, both spouses typically deserve at least some degree of fault, and it can be an arid task to assess those degrees.

Under the 1964 Act, however, the task became a necessary one. (6) The court had discretion to award either a capital sum, a periodical allowance, both, or neither, based on the behaviour of the parties. (7) In one example, the court awarded the wife a capital sum which was restricted because she induced her husband into the marriage by falsely stating that she was pregnant with his child. (8) A defender's actual income was the relevant factor. (9) His potential earnings could be considered, but there was no requirement on the man to maximise his income. (10)

Contemporary commentary addressed the loss of pension rights on divorce, but the courts in Scotland did not consider that issue. (11) Periodical allowance did form part of the post-1964 divorce landscape and that fact was undoubtedly a step forward for those innocent parties whose spouses were capital-poor and income-rich. The Divorce (Scotland) Act 1976 introduced grounds of divorce for periods of non-cohabitation for two years with consent and five years without the need for consent. (12) Fault-based grounds of adultery, behaviour and desertion remained (13), but the statute demonstrates a clear move away from fault as a requirement for divorce. …

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