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