No sign that Eng­land will be­come the main­te­nance cap­i­tal of the UK

The Herald - - NEWS - JANE MAIR

ANAL­Y­SIS THE claim that Eng­land will be­come “the main­te­nance cap­i­tal of the United King­dom” is a wee bit of spin. As far as I know we do not have the ev­i­dence to show that any award in Eng­land is al­ways go­ing to be more gen­er­ous than in Scot­land.

This case raises the is­sue of fo­rum shop­ping in re­la­tion to di­vorce cases, and the fear of it is raised quite a lot but there seems to be fairly few re­ported cases where it hap­pens.

It is of­ten said in Scot­land that the wife would only get at most three years main­te­nance. That’s be­cause Scot­land has a com­pletely dif­fer­ent sys­tem where the start­ing point is you share the mat­ri­mo­nial prop­erty and if you share that fairly, hope­fully you can get a clean break and you would not need to have the on­go­ing main­te­nance pay­ments.

In Eng­land there is not the same ap­proach. In prac­tice, in many cases you do not get main­te­nance ei­ther, but in the high value cases that hit the head­lines there is cer­tainly a greater chance of on­go­ing main­te­nance.

English fam­ily lawyers will say the Scottish sys­tem is very ba­sic, you get half the prop­erty and if you are lucky you get three years main­te­nance. But that is a gross over­sim­pli­fi­ca­tion. The Scottish sys­tem has dis­cre­tion, but they ex­er­cise that within very clear statu­tory prin­ci­ples.

To say that in English courts, long term awards of sup­port are of­ten made is also mis­lead­ing. They are of­ten sought and made in the high-pro­file cases, which tend to be very un­usual high­value cases, that hit the head­lines, but there is less clear ev­i­dence that in or­di­nary cases that long-term main­te­nance awards are fre­quently made.

In Scot­land the ap­proach would be you would get a fair out­come but in a dif­fer­ent way.

Just to fo­cus on the main­te­nance claim can be quite mis­lead­ing.

If you re­mem­ber when Paul Mccart­ney was get­ting di­vorced from Heather Mills, one of the big issues was with a short mar­riage, was she en­ti­tled to share in the wealth he had built up from The Bea­tles be­fore he met her.

Now in Scot­land she would not be be­cause that would not be mat­ri­mo­nial prop­erty.

Pro­fes­sor Jane Mair is the pro­fes­sor of pri­vate law at the Univer­sity of Glas­gow.

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