Senior judge calls for divorce changes in Scotland

Periodical allowance limit discriminates against women, says Lord Hope

News, 25 May 2006

A Law Lord has called for changes to Scotland's divorce laws in supporting yesterday's House of Lords ruling on financial provision in two high-profile English cases.

In one of two appeals heard together, the House of Lords ruled that Julia McFarlane was entitled to £250,000 a year for life from her ex-husband Kenneth.

Mrs McFarlane argued that she had given up a high-earning career to marry Kenneth. He had argued that he should pay the £250,000 a year for three years only, but Mrs McFarlane countered this, saying she should receive payment for life and the court agreed with her.

Lord Hope of Craighead, the former Lord President of the Court of Session, who sat on the bench in both appeals, said that counsel for Kenneth McFarlane had relied on the "clean break" principle applied in Scotland as a guide to the way the English legislation should be applied. This would support the Court of Appeal's decision to limit the payments to Mrs McFarlane to a five-year period.

Lord Hope however pointed out that the McFarlanes, who both had high earning potential when they married, had agreed that Mrs McFarlane should "sacrifice her own high earning career in the interests of the family while her husband developed his ability to generate income". The Scottish Act relied on a fair sharing of the matrimonial property at the time the parties separated, plus a payment of periodical alowance for up to three years if necessary to allow a dependent spouse to adjust.

He added that as Mr McFarlane now earned some £750,000 a year net but had relatively little capital, "It would not be possible to design an award under the Scottish system that provided an amount of income for the future that gave fair recognition to her entitlement."

"With the benefit of hindsight," he continued, "it can be seen how unfairly the principle which [the Scottish provision] lays down... discriminates against women." Observing that many more women are now reaching the ranks of the highly paid, but find that taking a break to concentrate on motherhood and family "comes at a price which in most cases is irrecoverable", he called for a fresh look at the problem.

A periodical allowance, he concluded, should no longer be confined to a maximum of three years: the court should have "a discretion to provide for a longer period where, in exceptional circumstances and applying the overriding criterion of fairness", a party could not otherwise be properly compensated because of insufficient capital.

The Scottish Parliament recently passed the Family Law (Scotland) Act 2006, which made numerous reforms but did not alter this aspect. A spokesperson for the Scottish Executive said that it would be considering the implications of the judgment for Scotland and would take into account Lord Hope's comments.