Legal Review: Family law plays catch-up with society

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Courts have not kept pace with attitudes to relationships, writes David Lee

The definitions of family, couple and marriage have changed dramatically over the past decade, but has the legal system kept pace with society’s shifting attitudes?

Two leading family lawyers think not – and argue that the law is ripe for change, particularly in how it deals with the separation of cohabiting couples.

Jennifer Maciver, legal director and head of family law at Gillespie Macandrew, says: “The ability to make a claim [when cohabiting couples separate] has been with us for ten years but there is a real lack of understanding of the area, and the difference between marriage, civil partnerships, common-law marriage and unmarried couples living together.

“There is also a lack of understanding about the legal repercussions. The legal position could be usefully looked at, reviewed and refined.

“It has come together piecemeal over years at a time we have seen very big changes in our view of the family, the role of marriage and same-sex relationships. The legislation is not sufficiently clear or comprehensive.”

Gillian Crandles, a family law partner at Turcan Connell, agrees: “The law on divorce is much clearer, while the legislation on cohabitation is very wide and it is sometimes difficult to see if someone has a claim or not.

“Case law is still evolving and legislative intervention will be needed to give us the guidance we need to give our clients the best possible advice.” 

One area where clients are well-served, Crandles and Maciver agree, is the increasing specialisation of judges and sheriffs in family law. They believe the appointments of Lord Brailsford and Lady Wise – and sheriffs with family law expertise – have been a hugely welcome step. “There is excellent case management and the judges really know their stuff,” says Crandles. There is much more of a consensual dialogue with the courts now. ”

Maciver says: “It’s been a hugely positive change which has given increased consistency and predictability to everyone, and their expertise and comfort with the subject matter is coming through in a very positive way.”

Maciver highlights the case of Glasgow sheriff Aisha Y Anwar, who explained a court decision on child contact directly to the children involved: “I’d never heard of that before and it is coming from the system of specialised sheriffs.

“Clients are getting a more specialist decision-maker and that can only be a good thing.”

Crandles argues that the family courts could improve further by making much better use of technology: “It’s going more slowly than it should, especially in terms of co-ordinating documents, but it’s coming and it will make a real difference.”

She also identifies progress in the greater emphasis on sworn written statements: “They save the court time and make the process more efficient. However, you are front-loading the cost because it takes a huge amount of time and effort to get these statements into the right form.”

Overall, Crandles argues, clients are being better served, despite some teething troubles: “There is a better understanding by the courts of what clients want and of the range of options available to avoid going to litigation.

“We have a good, powerful set of tools and you need to look for a bespoke solution for each particular case. Some people manage very well with mediation, especially where the issues are child-related and not financial.

“Collaborative practice can help make decisions in the best long-term interests of the family, using a range of experts, and arbitration can help bridge the gap where there is perhaps one main sticking-point to moving forward.”

Maciver agrees that family lawyers understand the range of tools at their disposal much better: “Mediation is the most widely known and can be hugely effective in family law as it allows people to sit down together, put them in charge of decision-making and make it easier for them to work together in future. Part of the challenge is having enough mediators trained in family law.

“Collaborative practice has been around more than ten years but continues to be a slow burn. It’s often a question of confidence of solicitors to depart from what they know. Arbitration has also had a slow uptake but I think we will see more as budgetary pressures on the courts start to bite.”

Maciver argues that a more radical approach is needed to tackle these pressures: “The Scottish family courts and the courts in general are working with limited resources and that will remain.

“The challenge is to use those resources in the most efficient way. For example, should undefended divorce cases be handled by the court – they are administrative procedures so is that an effective use of court time?

“Should there be more electronic filing of documents and a more form-based system instead of long pleadings?”

Breaking up is harder to do…

The rising number of international relationships and the increase in people working abroad is creating a challenging new dynamic for family lawyers.

“We are seeing far more family cases where one or both parties lives outside Scotland or one or both parties are not British nationals,” says Jennifer Maciver of Gillespie Macandrew.

“We see a lot of cases involving England but we are seeing more relating to the United States and expats living in Commonwealth countries.

“The impact is more cross-border disputes involving children, especially one parent wishing to relocate children to another country which very often is their home country.

“There are also more cross-border claims for child maintenance and this all adds layers of complexity.”

Maciver says there is another element to this increasingly global work: “When it comes to divorce and financial claims, if one or both spouses has a foreign link, they may be able to use more than one country to make an application for divorce – and the outcomes can be significantly different in different countries. This is leading to forum shopping.”

Gillian Crandles at Turcan Connell is also seeing more cross-border work, partly down to entrepreneurs whose children are working outside Scotland.

She says they are becoming more sophisticated and aware about their potential vulnerabilities on estate planning. “They want to protect what they pass on to their children,” says Crandles.

“We are also seeing expats working outside the UK with a wide variety of assets in jurisdictions with different laws applying.

“The globalisation of the workforce is creating greater complexity.”

Maciver is seeing more disputes about pensions as a result of their value increasing.

She says: “It has made it more worthwhile for people to look at it and raises lots of questions, especially about when a separation took place.

“If there is a substantial change in the value of a pension, a number of months [in terms of when a separation took place] can become significant.

“This kind of dispute is also arising more as property values pick up again.”

Crandles has also noticed an increase in the range of measures people are taking to protect their assets – pre-nuptial, post-nuptial and cohabitation agreements – all year round. “Rather than the majority coming around the wedding season, they are now spread through the year,” she says.

Maciver is seeing more inquiries about pre-and post-nups from people of more modest wealth.

“It’s been seen as the preserve of the very rich, but the focus in England has put it into people’s minds up here.

“However, although more people are coming forward, a lot of them are not taking things forward as many don’t feel comfortable about such agreements.”

Briefing: Divorce, by Jennifer Maciver

Most people know that it is possible to divorce a spouse on the ground of their “unreasonable behaviour” but are less sure about what is, and is not, deemed to be unreasonable.

Is, for example, a spouse’s infuriating snoring sufficient?

In Scotland the applicant must show their spouse has behaved in such a way that “they cannot be reasonably expected to cohabit with them”. That is, in general terms, a low bar and opens the door to a wide range of physical and verbal behaviour.

Conduct that would undoubtedly give a ground of divorce would include abuse of drugs or alcohol, the refusal of sexual relations, sexual relations with a third party and physical violence.

Other, perhaps less obvious, examples include controlling behaviour, persistent put-downs and a complete withdrawal of any form of meaningful communication or emotional support.

The test is that the spouse in question must find it to be so difficult that he/she cannot continue, and that a reasonable person would feel the same way.

This knocks out trivial behaviours. For the reasonable person, snoring is annoying but trivial and would therefore not be enough.

Jennifer Maciver is legal director at Gillespie Macandrew

Briefing: Scottish taxes, by Alexander Garden

We are all now familiar with the fact that there are Scottish taxes.

The first actual impact of these taxes was not until the introduction of the land and buildings transaction tax (LBTT) on 1 April, 2015.

Then 2016-17 saw the introduction of the additional dwelling supplement of 3 per cent. There has been much press coverage about the potential impact of the LBTT rates on the Scottish property market.

On income tax, the Scottish Government now has the power to set the Scottish rate of income tax.

The power was used for the first time in 2016-17 and it was set so as to give the same effective rates north and south of the Border.

It is only in the current year where the first differential income tax rates apply, although the impact is limited – the Scottish Government has decided to freeze the threshold at which the higher rate (40 per cent) applies at £43,000.

Divergence is clearly here to stay as evidenced by the recent vote in Holyrood and comments at the SNP conference.

The Scottish Government must be acutely aware of possible behavioural impacts of any changes, especially where a different rate or regime exists across the Border.

Alexander Garden is partner and head of tax and succession with Turcan Connell

This article appeared in the Scotsman’s annual legal review 2017

The Scotsman’s annual legal review looks at some of the most active areas of legal practice in Scotland. Informed by comprehensive data published by Chambers and Partners and Legal 500, the articles give exclusive insight into the work of more than 11,000 practising solicitors and over 460 practising advocates.