So, is the English legal system actually looking to the Scottish system for inspiration in divorce law reform?
There have been a number of reports in the media recently about the English Law Commission’s four year review of “nuptial” agreements and divorce pay outs.
Of course pre-nuptial and post-nuptial agreements have always been binding under Scots Law provided they are essentially fair. There is a long standing history in Scotland of couples regulating their financial affairs after separation by use of registered separation agreements, and pre-nups and cohabitation agreements are also proving more popular.
The English courts have however not always felt bound by such agreements and can ignore or modify them in family cases. It is now proposed that divorcing couples in England could set their own terms in a pre-nuptial agreement or decide on division of their assets in a legally recognised post nuptial agreement. The Commission goes further and recommends that divorced spouses should no longer expect financial support for life from their ex . Typically the support should not be paid for any longer than ten years after divorce or until the children reach secondary school age.
The Scottish divorce system has however been curtailing payments for continuing support of an ex-spouse since 1986, and awards of support for life are now very rare and generally the maximum an ex-spouse can expect is three years after divorce. The English Law Commission is now laying emphasis on achieving financial independence for both partners, mirroring the clean break principle in Scots divorce law.
While the wider debate about Scottish independence is hotting up towards the September referendum, it’s worth remembering that Scotland already has a very different, independent and unique legal system in this area of law.
Some clients I have spoken with recently have been unaware how different our divorce law is to England and on more than one occasion I’ve had to point out that in Scotland, unlike England, you can’t expect to get divorced first and sort out the finances later. Hopefully a potential disaster averted! But how many residents of Scotland know that when they read the press reports which tend to report on English cases or reform proposals?
Even with the proposed reforms there will still be scope for argument. What may be reasonable for one couple might not be for another. That is where the skills of a family lawyer will still be required. And so it has proven already in Scotland for nearly thirty years.
As specialist family lawyers, we at MTM can steer clients through the complexities of pre-nuptial and separation agreements as well as a host of other family law issues.