No plans to amend divorce money law - minister

Scotland not to copy English Miller/Macfarlane provision

News, 26 September 2006

There are no plans to amend Scots divorce law to bring it into line with the English cases of Miller and Macfarlane, the Deputy Justice Minister has confirmed.

In a parliamentary answer Hugh Henry, the minister, said that no proposals were to be brought forward to change the rules for awarding financial provision in divorce cases.

Questions have been raised since May when the House of Lords, in two English appeals, ordered maintenance out of the future earnings of high-earning husbands for their wives who had given up well-paid careers of their own to look after the household. In his judgment the Scottish Law Lord, Lord Hope of Craighead said that Scots law could not achieve a similar result bcause of the way the legislation was drawn, and that it risked discriminating against wives in such situations.

Lord Hope's comments have caused controversy. Some family lawyers claim that women with lower earning capacity would be better off under the English system, but in the July issue of the Journal (see http://www.journalonline.co.uk/article/1003219.aspx) Professor Kenneth Norrie of Strathclyde University strongly defended the "clean break" approach of the Scottish system and argued that the Family Law (Scotland) Act was flexible enough to cope with such cases.

In his answer Mr Henry said that under the Scottish Act it was open to courts to make awards in lump sums or by instalments without time limits.

Scottish family law was the subject of wide-ranging reforms in the Family Law (Scotland) Act 2006 and it is thought unlikely that further reform will be attempted in the near future.