Ongoing support following divorce and a Cautionary Tale from South of the Border

Ongoing support following divorce and a Cautionary Tale from South of the Border

Those of us with an interest in developments South of the border may have read (with horror or interest, depending on your position) the recent story of Maria Mills, who successfully argued that she should receive further financial support from her husband after spending all of the sums received in the original divorce settlement. This alone is fairly significant, however factor in the fact that they have now been separated for almost 15 years and the magnitude of the decision (and what this could mean for individuals in similar situations) becomes clear.

The decision has been the subject of some criticism, with Mr Mill’s QC stressing that “there is a social change going on” and that a decision in favour of Ms Mills would go against “the tide towards seeking independence.” It is thought that Mr Mills will appeal to the Supreme Court.

In light of this decision, it seems a sensible time to revisit the issue of ongoing support in Scotland. The position regarding ongoing support for spouses following divorce is very different North and South of the border. Indeed, Scotland is far less generous when it comes to ongoing support. Scottish courts very much favour the notion of a “clean break” divorce, meaning that maintenance is very rarely awarded indefinitely. There is provision within the legislation for a person who has been substantially dependent on their spouse to receive support for an “adjustment period” of up to three years following divorce. The spouse must show a need for ongoing support with reference to the parties’ respective needs, resources, earning capacities and all the circumstances of that particular case. Often, even if an award is made, it is not payable for as long as three years. The purpose of this provision is strictly to help the spouse adjust to the loss of support previously enjoyed during marriage. There is, at least in theory, the possibility of indefinite support under the same legislation, however in practice it is highly unusual and it is only where serious financial hardship can be proven.

Even if ongoing support cannot be justified there are a number of other options, which can be explored in order to protect spouses financially following separation. Aitken Nairn have a wealth of experience dealing with financial provision on divorce and related matters and would be pleased to assist. For further information or to arrange to meet with one of our experienced Family Law Practitioners please call or email us using the details on our website. Further information regarding our Fixed Fee Family Law Package can also be found on the website.

Written by Lauren Queen.