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England to mirror Scots family law?

  • rubytuesday
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27 Jul 12 #345657 by rubytuesday
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Recently, there have been recommendations made for England/Wales legislation to mirror certain elements of Scots law, this is an interesting development.

In the first recommendation, during the Supreme Court ruling in the case of Gow v Grant [2012],(a co-habitation case, Lady Hale used this case as an opportunity to advocate a similar set of rules to those in Scotland being introduced in England and Wales based on the principle that compensation should be paid for economic advantages and disadvantages resulting from the cohabitation.

Lady Hale focused her arguments on the inherent injustice she felt results from the current position, where parties are likely to be penalised due to the lack of recognition of contributions or sacrifices made during cohabitation.

Lady Hale acknowledged the difficulty in quantifying economic benefits over the course of a relationship, but she advocated a system which assesses where the parties were at the beginning and at the end of their cohabitation and then calculates the net disadvantage or advantage to each party.

She made clear that the advantage of the Scottish regime is that, "it does not impose upon unmarried couples the responsibilities of marriage, but redresses the gains and losses flowing from their relationship.”. The purpose of such legislation should not be to impose upon unmarried couples anything resembling the matrimonial principles for the division of assets following financial claims upon divorce.

Lady Hale highlighted how the case drew attention to the diversity amongst cohabiting relationships and challenged the stereotype that cohabitants are always younger couples, or those with children. Here, both parties were over 50, had no dependants and were home owners in their own right. Such examples are likely to become more common as traditional attitudes towards marriage (and remarriage) continue to change. The fact that older cohabitees are much more likely to have substantial assets capable of being sacrificed only gives strength to the view that the English system is antiquated and inadequate to deal with many modern relationships.

In the second, MP Caroline Noakes called for reforms to child maintenance legislation, to enable parents to draw-up summarily enforceable agreements over child maintenance. She has suggested that the Government should use the current review of the Child Support Agency to bring forward legislation to replicate the Scottish principle, and enable ‘Summarily Enforceable Family Based Agreements’ which will “seriously reduce non-payment of maintenance, speed up repayment of arrears, reduce costs to the tax payer, and most importantly, offer new protection to parents with care”.

Scottish style Enforceable Family Based Agreements also deal with the issue of charges for using the CSA. Charges are a fundamentally flawed policy which makes no social or economic sense. They penalise those who need support in securing maintenance most – usually impoverished single mothers who simply will not be able to afford to access the CSA and will therefore lose out on maintenance despite needing it the most, whilst burdening the tax payer with the substantive cost of the case being managed by the CSA. Summarily Enforceable Family Based Agreements mean – as in Scotland – there is no need to go to court or the CSA to either draw-up or enact the agreement. They are cheap, quick, and offer the protection the current system fails to do.”

The clear emphasis here is on enforcement, rather than parents working together to agree amicably on child support, which is disappointing.

I am curious to know how such proposals would work within England/Wales, given the huge differences between the jurisdictions in E/W and Scotland, is it possible for one jurisdiction to "borrow" elements of another''s legislation without overhauling the entire current family law legislation?

Personally, I think a good starting point for the Westminster Govt to start borrowing elements Scots family law would be to introduce a mirror of (s)1 of the Children Act (Scotland) 1995 ;)

  • hawaythelads
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27 Jul 12 #345671 by hawaythelads
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Don''t tell me I''m gonna have to give a free house away every time I take a new woman down The Harvester "early bird special" on a date FFS !!:blink:
All the best
HRH xx

  • dukey
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27 Jul 12 #345673 by dukey
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There are parts of Scots law that seem to make more sense than what we have south of the border, agreeing the money side before divorce for example, the asset division seems much less open to interpretation, down here we have the problem of discretion of court, you would think the discretion would be narrow, from judgements it seems anything but.

HRH take the meds my friend :)

  • Fiona
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27 Jul 12 #345678 by Fiona
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hawaythelads wrote:

Don''t tell me I''m gonna have to give a free house away every time I take a new woman down The Harvester "early bird special" on a date FFS !!:blink:
All the best
HRH xx


Adopting something along the lines of the Scottish rights for co-habitants wouldn''t mean that at all. Co-habitants are treated completely differently from married couples. First of all you would need to live together for sometime before claiming co-habitants rights and secondly the rights specifically exclude property.




Co-habitants can make claims against pooled monies and for relationship disadvantage. For example, when there are children and someone gave up their job or to help with the costs of child care. Awards here tend to modest, say around £16k. The point is the rights in Scotland offers more certainty than in England & Wales where claims under the Children Act 1989 to provide housing for children etc may or may not be successful.

I''ve lived and work in several countries and find there are advantages and disadvantages with the law in them all. Settling the finances and then divorcing after one years separation with consent or two years separation without works very well and minimises the opportunity for conflict. The disadvantage is that you loose the choice of forum when someone is eligible to divorce in more than one country and the other party starts divorce proceedings in another country.

I''m not sure where the notion comes from that the CSA 12 month rule doesn''t currently apply in Scotland. The position 18 months ago is outlined in the Law Society of Scotland document below and as far as I''m aware no change has yet been implemented.


www.lawscot.org.uk/media/279298/fam_futu...hild_maintenance.pdf

  • rubytuesday
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27 Jul 12 #345695 by rubytuesday
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Thats what I had thought too, Fiona, regarding the CSA 12 month rule in Scotland. The proposed Enforceable Family ­base­d Agreements are really just a Consent Order, so I cant see why there is a need to try to introduce something that already exists, but under a different term :s

  • LittleMrMike
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27 Jul 12 #345720 by LittleMrMike
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Well, my first reaction is that Lady Hale doesn''t seem to have much difficulty in recognising contributions in cases such as Stack v Dowden or Kernott v Jones, by the application of principles such as constructive/resulting trusts, or proprietary estoppel.
I agree entirely that the period for divorce by consent should be reduced to 12 months. Here in North Carolina it is the only ground, so I believe. I don''t care much for the widespread use of UB to disguise what are effectively divorces by consent. Where there are no children involved it seems to be at least arguable that the parties got married because they both wanted to ; so why should they not be able to leave if they both want it, and is it any of the state''s business to enquire into the reasons why they want to end it ?

LMM

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