Roger MacKenzie: Degrees of separation - why family law will perhaps always be a work in progress

THE launch of the Family Law Association’s Guide to Separation and Divorce in Scotland is overdue recognition that all too often people going through the painful process of splitting from their partner labour under misapprehensions gleaned from tabloid titbits about celebrity divorces in London or Los Angeles.

Scots family law has tended to be ahead of the game in reflecting the changing dynamics of modern families. Unfortunately, the drafters of recent well-intended legislation have failed to emulate the well-crafted, principled acts of previous decades. 

The bedrock remains the Family Law (Scotland) Act 1985. 

With five clear principles underpinning how courts should consider the division of matrimonial property, the act centres on the idea of “fair sharing” of matrimonial property, with the valuation of property usually taken as at the date of the parties’ separation. However, Lord Hope, who gave the judgment in the big-money English divorce of McFarlane v McFarlane, has argued that the Scottish approach is inflexible in not providing a solution for (usually) wives who have sacrificed their career for family but are restricted in claiming maintenance or periodical allowance post-divorce for a maximum of three years.

His concern reflects the difficulties we see in practice, where limited capital has been accrued but the husband will continue to enjoy the fruits of a high income for years to come, while the wife is faced with trying to pick up a long-dormant career. 

Longer awards of maintenance are only made in Scotland in quite restrictive circumstances, where financial hardship can be demonstrated. 

It is arguable that three decades on from its inception, this part of the act does seem dated, particularly in an age of economic austerity, where jobs are scarce for those returning to the labour market.

Likewise, the law which regulates parents’ relationships with children, Children (Scotland) Act 1995, was a far-sighted piece of legislation, underpinned by the welfare of the child. 

Yet there remains a sense of unease that sometimes the interpretation applied by the courts to this child-centred act still places an onus on fathers to prove their worth as parents. Perhaps too, the focus on seeking the views of children has gone too far and can, contrary to the act’s intention, allow adults to abdicate their responsibility to guide a child appropriately. 

Scotland, too, was enlightened in introducing rights for cohabitants in 2006.

In recent weeks the English courts were still grappling with this notion and opened the door to looking behind the title to a property to look at the respective parties’ contributions when deciding how the property should ultimately be divided. Unfortunately, family lawyers operating in Scotland are unanimous in agreeing the drafting of the legislation providing cohabitants with rights in Scotland still leaves practitioners unclear as to the advice to proffer to separating parties. 

Public money has been spent allowing some of our leading counsel to argue some fairly low-value claims, including examination of who paid for the shopping and whether that constitutes an economic disadvantage justifying payment of a capital sum. 

It seems it will fall to the Supreme Court in London to attempt to offer guidance that will allow practitioners to advise with confidence.

• Roger Mackenzie is a solicitor in the family law unit at Maclay Murray & Spens LLP and editor of the Family Law Association Guide to Separation and Divorce in Scotland, www.familylawassociation.org