Forty years on: has the Family Law (Scotland) Act 1985 delivered justice for women on divorce?

This year marks the fortieth anniversary of the Family Law (Scotland) Act 1985—the cornerstone of financial provision on divorce in Scotland. At the time of its introduction, the Act was heralded as bold, progressive and modern. It established a framework that aimed to simplify and rationalise how assets were divided at the end of a marriage, with statutory principles designed to ensure fairness, recognise non-financial contributions, and address economic disadvantage.

In marking this anniversary, it is timely to consider whether Scottish family law has evolved positively or whether, in too many respects, it is still rooted in the assumptions and limitations of 1985. At the heart of the debate lies a persistent question: has the Scottish legal system fully embraced the potential of this legislation to redress the gendered economic inequalities which may arise as a consequence of and in the aftermath of divorce? Or has the system remained anchored in outdated assumptions about marriage and the value to be attributed to the role of the homemaker?

The Statutory framework: A snapshot

The Family Law (Scotland) Act 1985 section 9(1) provides five guiding principles which govern financial provision on divorce:

• (a) Fair sharing of matrimonial property: Assets acquired during the marriage should be shared fairly—usually equally.
  
  
• (b) Economic advantage and disadvantage: Compensation may be awarded where one party has gained an economic advantage, or the other has suffered disadvantage in the interests of the other or of the family.
  
  
• (c) Economic burden of childcare: Where one party continues to care for a child under 16 after divorce, the financial burden should be shared fairly between the parties.
  
  
• (d) Adjustment to loss of support: A financially dependent spouse may receive short-term support (usually up to three years) to adjust to the loss of financial support
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• (e) Prevention of serious financial hardship: Further provision may be made where divorce is likely to cause serious financial hardship.

Does Scots family law deliver fairness for women?

Section 9(1)(b) of the Family Law (Scotland) Act 1985 was designed as a mechanism to address economic disadvantage suffered during marriage, specifically to compensate spouses who have suffered economic detriment in the interests of the other party or the family. In theory, this provision offers a tool to redress the financial consequences often borne disproportionately by women, who conventionally at least were the ones who interrupted or limited their careers to provide care and support to their families. However, the extent to which the legislation recognises the disadvantage suffered by such women remains arguably limited in practice.

The case of Cunniff v Cunniff stands as a notable exception. However, the very limited value of the matrimonial property involved and the court’s hesitance to award sums exceeding the value of that property ultimately aligns the outcome within the broader pattern of judicial restraint observed in similar cases.

Early cases like Little v Little and Loudon v Loudon demonstrate the tendency of Scottish courts to view equal sharing as the default “fair” solution, often perceiving economic disadvantage claims under s.9(1)(b) as exceptional.

The courts expect evidence of economic loss, which can be a challenging hurdle for many women whose losses are intangible or indirect. The courts also frequently engage in a balancing exercise that weighs economic disadvantages against possible economic advantages obtained by the other party, as seen in Corsan v Corsan. Whilst this approach seeks to avoid double compensation or “windfall” gains, it can obscure the systemic economic inequalities women face, particularly when non-financial contributions lack clear market value or quantification.

Moreover, the courts’ hesitancy to recognise the economic advantage derived by the working spouse from domestic contributions—exemplified in Coyle v Coyle—limits the transformative potential of s.9(1)(b) to truly rectify gendered economic imbalances.

This judicial conservatism culminates in a broader critique highlighted in Miller v Miller; McFarlane v McFarlane (English House of Lords, 2006), where Lord Hope delivered a critical assessment of the Scottish framework. He pinpointed the rigidity of the 1985 Act and the associated “clean break” philosophy as a significant obstacle to providing justice for women who sacrifice careers and earning capacity. Lord Hope emphasised that Scottish law’s limited duration of post-divorce support and strict presumptions inhibit courts from adequately compensating long-term economic disadvantage, leaving women vulnerable to unfair outcomes. His analysis highlighted that while the English courts were evolving towards a more flexible and needs-based approach, Scotland may be said to be hampered by statutory constraints which failed to reflect the lived economic realities of modern marriage and divorce.

Despite four decades of judicial interpretation and legislative stability, it could be argued that the Scottish legal system has not fully realised the potential of the Family Law (Scotland) Act 1985 to achieve substantive justice for women on divorce. The continued dominance of formal equality in asset division, paired with a reluctance to embrace the compensatory spirit of s.9(1)(b), suggests that the system remains anchored in outdated assumptions about marriage roles and economic contribution. Without significant reform to provide greater judicial discretion and recognition of gendered economic realities, Scottish family law risks perpetuating inequality rather than remedying it.