Rachel Roberts, Managing Partner at Stowe Family Law, highlights the key differences between spousal maintenance settlements in Scotland and England following separation. We may have been politically united since 1707 but there can be little doubt that Scotland and England are two very different nations with entangled but distinct cultures - and of course entangled yet distinct legal systems.
Although English and Scottish law have much in common, the two systems take a very different approach to some of the fundamentals of family law - and that includes spousal maintenance: ongoing financial support paid by the higher earning spouse following divorce. These payments are intended to address the fact that the spouse in receipt of the payments is likely to be at a financial disadvantage following the separation and unable to meet their needs out of their own income or resources. In many (though obviously not all) cases, these are wives who have given up their careers to raise the couple’s children.
Maintenance south of the border
When compared to other countries, English law is seen as generous when it comes to maintenance and financial settlements after divorce, one factor which has encouraged many women married to wealthy men abroad to try and divorce in our courts.
Having said that, English family courts do have a duty to consider whether a so-called ‘clean break’ settlement can be imposed with immediate effect – ending any future financial ties between the couple. This can be with or without a lump sum to “buy off” a maintenance need. Therefore any ongoing provision of maintenance will be about meeting the needs of the receiving party, and not about sharing in the higher earner’s income after separation.
If the Court determines that there is a need for ongoing support, the Court will then go on to consider the factors outlined in the section 25 of the Matrimonial Causes Act 1973. The most relevant of these for the purpose of maintenance are the following:
- the financial resources of the parties;
- the earning capacity of the parties;
- the length of the marriage and the lifestyle enjoyed by the couple while together.
The financial needs of any children are of course prioritised via separate child maintenance awards, but inevitably the ongoing physical commitments of caring for children will influence an award, if it affects the receiving party’s ability to generate income.
The amount to be paid depends entirely on the facts of each case and the couple’s circumstances and assets. English law does not apply any kind of formula to maintenance: instead family judges have the discretion to assess needs and determine the appropriate level of maintenance in each case.
If a court decides maintenance is warranted it can be paid with or without a defined end point. In the latter case that effectively means until the receiving former spouse remarries, either party passes away, or the Court makes an order terminating maintenance. It is increasingly difficult these days to persuade the Courts to make time limited orders, and this reflects a significant shift in approach over the last few years. However, orders that last until the children reach adulthood and or the parties retire are not uncommon.
Provisional “interim” maintenance payments are also available while the divorce proceedings are ongoing.
Maintenance north of the border
Scottish law differs significantly from its English counterpart when it comes to spousal maintenance. While the couple remain married, the obligation of aliment or spousal maintenance exists, but this obligation ends on divorce. The claimant spouse must demonstrate a need for financial support – generally this is done by showing a shortfall between income and outgoings. The spouse facing the claim also must have the resources available to pay. Again, this is established by looking at income and outgoings to determine whether the paying spouse has a surplus. Spousal aliment is separate and distinct from child support.
The Scottish courts rarely order on-going ‘periodical allowance’ payments for longer than a limited period of time after a divorce, placing much greater emphasis than their English counterparts on clean break settlements bringing any financial ties between a divorcing couple to a permanent end. Periodical allowance will be awarded in cases where otherwise unequal division of the assets is still not enough to bring about fair sharing of the property. It is intended to prevent a spouse being left in financial hardship as a result of the divorce.
A periodical allowance may be ordered if there are problems around the payment of a lump sum, if one party is struggling to meet the cost of childcare or experiencing other financial difficulties or if they are at risk of real hardship following the divorce. In most cases there is time limit of three years on such payments, with only a few, rare exceptions.
Clean breaks can be achieved via a lump payment from one party to the other. Properly calculated, this can result in a fair and equitable division of the couple’s assets without on-going financial ties. Typically lump sum settlements are paid in full but they can also made in instalments and the agreed payment schedule can be varied by court order at a later date.
Two very different approaches, then, to one of the central planks of divorce law.
Rachel Roberts is the Managing Partner of Stowe Family Law LLP’s Leeds office and has been with their firm since 2002. Notable career highlights were the location and securing by way of an injunction over a million pounds in assets and representing several well-known television personalities. Her particular interest lies in ancillary relief and the tracing and protection of assets.
