A recent decision from the Supreme Court has sparked debate on the practice of English Courts awarding indefinite maintenance to spouses on divorce.
Mr and Mrs Mills divorced in 2002. Mrs Mills was awarded a lump sum of £230,000 and an indefinite maintenance payment of £1,100 per month. As a result of a number of unwise financial decisions by 2017 Mrs Mills had accumulated some £40,000 of debt and applied to have her maintenance payments increased.
The Supreme Court ultimately refused the increase although the original award of £1,100 stands.
The case has been widely publicised and couples divorcing in Scotland may wonder what their entitlement to maintenance is post-divorce.
In contrast to the approach in England where long term maintenance post-divorce is not unusual, Scotland has a strong emphasis on a financial clean break. Awards of maintenance over a prolonged period are extremely rare.
A divorcing party in Scotland may seek maintenance post-divorce (known as periodical allowance) generally for a maximum period of three years, except where serious financial hardship can be demonstrated. Otherwise awards may be made to allow one spouse to adjust to life without the financial support of the other.
In cases where one spouse will suffer exceptional financial hardship without the support of the other spouse, the court can award long term periodical allowance; but such awards are uncommon.
Scottish courts may also consider whether a spouse’s entitlement to a share of the matrimonial assets can be satisfied by an enhanced capital payment, rather than ongoing maintenance. In Scotland divorcing couples are expected to achieve self-sufficiency more quickly than their English counterparts. Securing a larger capital sum this may enable a spouse to make provision for the future by, for example, purchasing a property.
What some may regard as a more enlightened approach allows couples divorcing in Scotland to move on with their lives post-divorce.
The family team at Brodies is able to advise on all financial matters arising from separation or divorce.
Please contact one of the team for assistance or visit our dedicated Family Law website.
On August 10, 2018