Embracing Equity in Family Law

Wednesday 8th March 2023 is International Women's Day. This year the global campaign theme is #EmbraceEquity. As the organisers are keen to point out, equity and equality are not the same thing. It is quite possible to treat people of differing genders in ways which promote equity, whilst not treating them identically. It is equity, rather than equality, which we strive for in family law in Scotland.

Divorce

It is a common misconception that divorcing couples are obliged to divide the property they have amassed during their marriage equally between them. They do not. The law can be found at section 9 (1) (a) of the Family Law (Scotland) Act 1985. What is required is that the property is divided "fairly" between them. But what does this mean in practice?

We often see cases where it is not appropriate for capital to be divided equally upon the breakdown of a marriage. The source of the finds which were used to acquire the asset in the first place can be important; for example, if inherited funds were used, there may be a good argument for the new asset, or a proportion of its value, to be excluded from the "pot" for division.

A common justification for seeking departure from an equal sharing of matrimonial property is where one party has given up work or put their career on hold to raise the children of the marriage, allowing their spouse to develop their own career. The law recognises that the party giving up their employment has made a non-financial contribution to the marriage by raising the children and at the same time may have suffered financial disadvantage such as loss of earnings, lack of career advancement and loss of pension rights. If satisfied that it would be fair and equitable to do so, the law provides that a departure from equal sharing of the matrimonial property can apply in these circumstances.

Spouses also owe an obligation of aliment (monthly support) to each other, both during the marriage and upon separation. If either party is unable to meet their monthly outgoings they can look to their spouse for assistance in the short to medium term. The law does not, however, require that each spouse should have equal disposable income. It is recognised that spouses will each have differing incomes and outgoings and accordingly any payments to be made will be calculated by looking at need, living standard and resources, as opposed to ensuring strict equality for both. Interim payments of aliment are often required by those who have sacrificed their own careers in the interests of their spouse, or of the children of the marriage.

Similar provisions also apply to civil partners upon dissolution of their partnership.

Cohabitation

Since 2006 the law has made specific provision for cohabitees to make claims against each other upon the breakdown of a relationship. They can only do so, however, in a very specific set of circumstances, being if either:-

(a) They have been financially disadvantaged in the interests of their cohabitee or any child of the relationship (or a child who has been accepted as a child of the family); or

(b) Their cohabitee has been financially advantaged by their contributions.

Whilst the law applies to both parties to a cohabitation equally (and also applies to same sex couples) the most common scenario in the developing case law is where a female has given up her employment to raise the children of a relationship whilst her partner continues to progress his or her own career. Non-financial contributions such as the provision of childcare, running the household or assisting with a business on a voluntary basis are considered. The law seeks to achieve equity between the parties by ensuring that neither of the parties is worse off by being in the relationship and by ensuring that they share in any gains made by their cohabitee during their relationship. It is not, however, an exercise in adding up the property they have acquired during the relationship and sharing the value of that between them, but rather a more general broad brush approach to achieving an equitable settlement.

Despite the fact that many women choose to work and are financially independent, the law continues to recognise that there is still work to do in terms of gender equality, particularly when considering the domestic arrangements of many couples. It remains the fact that many women require financial support at the end of a relationship. Following relationship breakdown, a way forward which allows both parties to get on with their lives is desirous. By focusing on reaching equitable solutions instead of attempting to force equality, outcomes which suit both parties can usually be found. For more information, please get in touch.