Although the Domestic Abuse (Scotland) Act 2018 criminalised coercive and controlling behaviours, explicitly acknowledging economic abuse as a crime, it is clear that this conduct is still unsettlingly common in Scotland today. Where the conduct of one party has adversely affected the parties’ finances during the marriage, account of it may be taken in settlement of financial matters relative to separation. Other forms of domestic abuse, on the other hand, have largely not been considered when assessing financial provision in divorce cases to date in Scotland.
The Family Law (Scotland) Act 1985 governs financial provision upon divorce in Scotland. The starting point is that matrimonial property is shared “fairly” between the parties, which ordinarily means equal sharing, unless there are reasons to justify an alternative division of the matrimonial property. One of these deviations is listed at s11(7), where:
"(a) the conduct has adversely affected the financial resources which are relevant to the decision of the court on a claim for financial provision; or
(b) in relation to section 9(1)(d) or (e), it would be manifestly inequitable to leave the conduct out of account."
An example of the application of Section 11(7)(a) in practice can be found in Bremner v Bremner 2000 SCLR 912, where one party’s conduct caused the other’s depression and inability to work, which had economic consequences. The husband’s reduced earning capacity was taken into account in the overall settlement.
The more interesting of the statutory provisions is s11(7)(b) as it is not concerned with financial loss at all. But rather, it asks whether in relation to s9(1)d and 9(1)e it would be manifestly inequitable to leave conduct out of account.
Section 9(1)(d) concerns loss of financial support and requires the court to consider the age, health and earning capacity of the claimant; the duration and extent of their dependency; any intention to undertake education or training; the resources and needs of the parties; and all other circumstances of the case (section 11(4)). Section 9(1)(e) concerns serious financial hardship on divorce and requires the court to have regard to the age, health and earning capacity of the claimant; the duration of the marriage; the parties' standard of living; their resources and needs; and all other circumstances of the case (section 11(5)).
The language used in both subsections is deliberately vague and requires consideration of ‘all the other circumstances of the case’. It is therefore unlikely that parliament intended domestic abuse to be wholly removed from the workings of financial provision, particularly when that abuse has affected the victim’s earning capacity, health and needs.
Importantly, Bremner recognised that section 11(7)(b) serves a different purpose from section 11(7)(a). The Sheriff Principal in that case stated:
"Sub-paragraph (b) of s.11(7) is concerned with the moral question of equity and may indeed involve a consideration of the intention and foresight of a party."
This observation is significant as it recognises that questions of morality survive within the Act. Whilst a fault- based system has largely been eradicated from Scots divorce law, claims based on dependency and serious financial hardship may permit a broader examination of conduct and fairness more generally.
Whilst economic control and the economic fallout from it is covered by s11(7)(a), it could be argued that the manifest inequity of domestic abuse and how it may have contributed towards dependency or serious financial hardship should be considered, whilst preserving the principle that financial provision is not intended to punish parties.
The case law on both principles already demonstrates the willingness of courts in Scotland to address financial disadvantage which subsists post-divorce. In Wilson v Wilson 1999 SLT 249, retraining was recognised as a legitimate mechanism through which a dependent spouse could regain financial independence. Similarly, in Sweeney v Sweeney 2005 SCLR 1073, a periodical allowance was awarded to bridge the gap until the wife received the full benefit of a capital award. These cases illustrate that sections 9(1)(d) and 11(4) are inherently concerned with adjustment and rehabilitation following divorce. Likewise, in Johnstone v Johnstone 1990 SLT Sh Ct 79, the court accepted that ongoing illness justified continuing support for an extended period because the resulting hardship was likely to persist. The decision demonstrates the flexibility already present within section 9(1)(e) to address enduring disadvantage. Arguably, the wording of these provisions lends support to the possibility of financial inequity resulting from domestic abuse being considered, and ameliorated, by Scottish courts when considered what is fair and reasonable financial provision on divorce.
The tension within the Family Law (Scotland) Act 1985 is that Scots law generally rejects a fault-based allocation of matrimonial property, but allows an examination of conduct for financial dependency and serious financial hardship. Domestic abuse sits squarely within that tension. Whilst there is some discussion of domestic abuse being factored into divorce claims in England, the question remains unanswered and untested in Scotland. A progressive legal system arguably ought to have the tools, discretion and creativity to recognise fully domestic abuse and its financial implications on relationships and separations.
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Senior Solicitor
