A smoother route to those split decisions

Four decades of case law adds up to clarity, says Kirsten Knight

It has been 40 years since the Family Law (Scotland) Act 1985 came into force, reshaping the landscape of matrimonial law north of the Border. Designed to bring fairness and clarity to financial provision on divorce, the Act remains a cornerstone of Scottish family law – even as relationships, assets and expectations have evolved dramatically over four decades.

The 1985 Act was, and still is, a progressive piece of legislation – providing a principled structure for dividing matrimonial property and supporting spouses financially after separation.

At its heart, the Act established that property acquired during the marriage – known as matrimonial property – should be divided fairly, with a strong presumption of equal sharing. It introduced a framework, guiding courts to reach outcomes that reflect economic realities and contributions, rather than emotion or fault.

The Act gives a helpful roadmap to family lawyers – and offers significant reassurance to clients, who often embark on a marital break-up with the expectation of chaos or confrontation, or both.

It is the cornerstones of the Act – its fairness and predictability – that provide that reassuring roadmap to those caught up in situations they never anticipated.

As with any Act, there remain some areas of uncertainty; it is by no means a “one size fits all” solution, and we’ve seen the courts grappling with how to interpret various aspects of the legislation over the years.

The judicial system in Scotland still relies on the discretion of decision-makers with regards to how they apply the law to the individual situation they are dealing with. However, we have 40 years of case law now, which gives solicitors a very good steer on how to advise clients who present with more complex issues.

Family law in this area has seen further reform throughout the years – notably in 2006, when new legislation extended some protections to cohabiting couples. This was a response to the changing shape of families in Scotland, with more people choosing to live together without getting married. However, although it did offer more protection to cohabiting couples, many argue that these protections still fall short of those afforded to married spouses.

Cohabiting clients are often surprised, and disappointed, by the limited remedies available to them. It’s clear that further reform is needed (and indeed, it is planned), to try and give greater clarity to cohabiting couples that separate.

The 1985 Act also faces fresh challenges in an ever-changing world that is moving inexorably online. The rise of digital assets, international property ownership and complex financial portfolios will continue to test the flexibility of its principles.

The cases we’re dealing with now are often far more intricate than they were in 1985. For example, we’re seeing the continuing rise in pre-nuptial agreements and family trusts, and the emergence of cryptocurrency assets – all of which require careful legal navigation.

However, despite these challenges, the Family Law (Scotland) Act is holding up well after 40 years. Its longevity is a testament to its clarity and fairness. The Act reflects Scottish values – equality, pragmatism and a strong belief in the rule of law. It might need to evolve, but it doesn’t need to be replaced.

Kirsten Knight is a Family Law Partner at Balfour+Manson LLP, based in Aberdeen​