Judge hits out at discrimination against women under Scots law

Published on 25/05/2006 01:20

Key quote

"The length of the period for which a periodical allowance should be awarded should no longer be confined to an absolute maximum of three years." - LORD HOPE

Story in full ONE of Scotland's most senior legal figures has launched a scathing attack on Scots law by claiming that women are being discriminated against in divorce settlements north of the Border.

Lord Hope of Craighead yesterday took the unusual step of criticising Scottish law as he delivered a ruling on two multi-million pound divorce cases in England.

The former lord president was among a panel of judges at the House of Lords that ruled Melissa Miller was entitled to 5 million of her former husband's assets after just two years and nine months of marriage.

Meanwhile, Julia McFarlane, who was awarded 250,000 a year from her former husband's earnings, was told that she can keep her maintenance payments for life if necessary.

In his opinion on the cases, Lord Hope called for a review of the limited awards Scottish courts can grant to spouses to cushion the blow of divorce. He called on judges north of the Border to be given power to provide long-term compensation to the partner of a marriage who has given up well-paid, promising careers after marriage.

The cases have been hailed as a significant victory for women. But as the judges were ruling on English cases, their judgments are not binding on Scotland.

Scottish family law experts last night said the ruling was a clear signal to the Executive that the issue of divorce settlements needed to be reviewed to halt the injustice suffered by many women when marriages break down - while also granting the green light for aggrieved wives to challenge Scots law in the House of Lords.

Yesterday's rulings have reinforced the concept in England of compensating a woman for giving up a career to raise children. But such a notion does not exist in Scots law, which favours a "clean break" over long-term support, which was branded by some as a "lifelong meal ticket" for former wives when the law was set in 1985.

It was this principle, and in particular the three-year time limit that exists in Scotland for "transitional" support payments to spouses following a divorce, which Lord Hope criticised in his judgment yesterday.

He said: "With the benefit of hindsight, it can be seen how unfairly the principle ... discriminates against women.

"It operates harshly in cases where a high-earning wife, or the highly-qualified wife with the prospect of high earnings - and it is almost invariably the wife, not the husband who does this - gives up a promising and demanding career in the interests of the family."

Lord Hope stated it was time to take a "fresh look" at the situation north of the Border. His statement continued: "The length of the period for which a periodical allowance should be awarded should no longer be confined to an absolute maximum of three years.

"The court should have a discretion to provide for a longer period where, in exceptional circumstances and applying the overriding criterion of fairness, the judge finds that one party to the marriage whose contribution to the marriage has resulted in a reduction in his or her earning capacity ought to be compensated out of the other party's future income because the capital needed to provide this is not available."

He continued: "It seems to me that the principles on which current restrictions are based need to be reconsidered ... as soon as possible."

Yesterday's judgment led to claims that wealthy husbands will seek to "shop" for divorces in Scottish courts, which take a far less sympathetic view towards wives when deciding on large settlements, while experts are also predicting an explosion in pre-nuptial agreements.

Rachael Kelsey, chair of the Family Law Society, said it was "almost inevitable" that Scots law relating to divorce settlements would be challenged. "I would have thought the whole question of ongoing support for wives in Scotland will have to be looked at.

"At the moment, a wife getting divorced in Berwick gets compensation while if it's heard in North Berwick they cannot," she said. "I think it's a matter of time before the ongoing support provisions in Scots law are tested.

"It's almost inevitable there will be a shift in the way ongoing support for wives is dealt with."

Ms Kelsey said it was also likely that family lawyers in Scotland would be influenced by Lord Hope's comments. "The economics of litigation is such that you only gamble if the odds are in your favour.

"If you have a decision from the former lord president, using strong language about the unfairness and discrimination against women, if you are acting for husbands in marginal cases, you would be saying 'do you want to run the risk?'

"In Scotland, family law is entirely a discretionary-based system. It would not surprise me if the courts were influenced by such a clear direction from our old lord president."

Kirsty Malcolm, a solicitor in the family law unit at Maclay Murray & Spens, said Lord Hope's comments were "something the lawmakers cannot ignore".

Ms Malcolm said the firm has been contacted by men and women looking to cross the Border in search of better divorce settlements by exploiting the difference in Scots and English law, not just in million-pound cases, but also "run of the mill" ones. "We can expect more and more people making these sorts of moves in the light of these cases," she said.

She added: "The three-year period is particularly harsh for women in their late 40s and 50s. They are quite often women who have been out of the job market for 20-odd years, have brought up kids and are never going to be able to go back into a high-earning profession. These are the ones suffering most."

Andrew Gibb, a family law expert at Balfour & Manson, said Lord Hope's comments were "highly persuasive".

He added: "I would think the Executive will have to look very carefully at the comments by judges in the House of Lords."

A spokeswoman for the Scottish Executive said: "We are considering carefully the cases down south and any implications for Scotland."