Anybody home before 7.30pm yesterday may have caught ITV's Tonight programme on "Divorce: For Richer or Poorer", asking whether England and Wales' divorce laws are fair? Leaving aside the obvious answers that generally this is not what divorce law is about and that specifically the word is not to be found in s.25 of the Matrimonial Causes Act 1973, the programme makers largely featured Michelle and Scot Young's divorce, currently proceeding in the High Court in London. Not an ordinary case that, by any one's standards. Michelle says that Scot is worth £400 million, that she wants her share and that until she gets it she will try to live in the manner to which she has become accustomed; Scot says he is worth -£27 million, that he now has a bankruptcy order to prove it, and that Michelle and their 2 daughters need to trim their sails to live at a standard that the State might have to subsidise. Not relevant to most of us, I hear you say. It is, though, an extreme illustration of everyday arguments fought out in our divorce courts, where the couple debate first what they are worth and second, how to divide it. Stereotypically, it's also the husband arguing down and the wife arguing up, as in Young.
Where did the programme take us? In a battery of female appearances, it called on Baroness Deech to reprise her role as a woman jousting against the stereotype, a task which she is doing, so far, with little sign of success. It also took us to Scotland, where things are different. They are not governed there by the Matrimonial Causes Act 1973 , but by the Family Law (Scotland) Act 1985. That has some features that divorce lawyers south of the Border recognise and some they regard with the suspicion reserved for novelty.
From my scant knowledge of Scottish divorce law there are some significant differences. First, up there, if I owned something before we married, that remains mine, not yours, a position different in its definitiveness from that down here in London. Second, in Scotland, if my mum leaves me her estate that too remains mine not yours; we are moving that way here, but not in "needs" cases, which are most of those passing through the system. Third, if the asset was acquired during the marriage, regardless of whether it is in my name or yours, it is "matrimonial" (same here in the south)but valued at the date of separation not divorce, if it's in my name not yours, a position very different from that prevailing down here. Commonly, children's maintenance is dealt with by the same blighted CSA, or CMEC as it now prefers to be called, but spousal maintenance (called aliment up there, or ailment on one website I viewed) is treated differently.
But not every trip to Scotland ends happily, as the example in the programme showed. There, a wife and child moved to Scotland to join the estranged husband for a reconciliation, – just before he left again. The wife was faced with a much more hostile landscape of legal claims in divorce proceedings, started with suspicious alacrity by her husband in Scotland. By the end of those proceedings, the wife was had no doubt that she would have been more generously provided for down here in the south. If the programme gave a typical example, spousal aliment is allocated for a far shorter period and at a much less generous level (and no, I'm not making any jokes dwelling on stereotypical nationalistic attitudes). No rush to "joint lives" orders up there, but a much less generous rehabilitation period (commonly three years, I believe), and a different approach to assessing income, apparently. In the colder climes up north, my salary continues to be taken into account for aliment assessment purposes, but my bonus remains mine to keep. That was an important point, and given the UK's charitable approach to bankers' bonuses generally, will continue to have a significant impact in those cases where a bonus is a feature.
Oddly, in one for channel hoppers, the point about unhappy endings for some who trek to Scotland was re-iterated in a different context later that evening, in BBC2's "History Cold Case: Stirling Man", where a 1300s excursion north finished, probably, in another messy end.
I think that the programme makers missed an opportunity and that it was all just a bit too unbalanced. In terms of gender input, the programme was largely female in perspective. It might have benefitted from a brief glimpse into the case of Radmacher v Granatino, currently before the Supreme Court. There, a super rich wife is defending her wealth on the basis of a foreign pre-nuptial agreement, so far successfully. How would the court's attitude have differed in that case, had the husband been the wealthy target?
Secondly, there was no attempt at any sort of general comparison of English (and Welsh) differences with Scottish matrimonial provisions. For instance, although the Scots were condemned, by implication, for parsimonious provision for wives, no mention was made of the availability of a simplified divorce procedure for those who just want to get divorced and have no contested financial claims to bring against each other, an option sadly lacking down here. More glaringly, given the programme's context and social trends generally, nothing said of the fact that Scotland gives financial rights to co-habitants as well, a class that currently do not get a "look in" down here.
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