DIVORCE hit the headlines last week when the McCartney break-up took centre stage before the world's media and an English case developed the law on pre-nuptial agreements. But had these battles been fought before a Sheriff, the men involved might have emerged significantly less battered emotionally and financially.
The women, however, would have been robbed of much of their amour. This is partly because divorce law in Scotland leaves less leeway for courts to be more generous to one or other party after hearing special pleading.
Pre-nuptial agreements an
yway carry more weight, which together with the parameters set down in the Family Law (Scotland) Act 1985 can have the effect of ring-fencing wealth and keeping it out of the hands of so-called meal-ticket wives.
However, it can disadvantage the many decent women who have sacrificed their own careers for the sake of their husband and family, only to find themselves left high and dry in middle age.
Unlike their English sisters, they cannot look forward to regular maintenance payments for the rest of their lives. Rather, Scottish law limits to just three years the length of time they can expect financial support from a former spouse.
Nor can they expect compensation if they have been poorly treated in their marriage, as the law specifically excludes "conduct" when reaching a settlement.
Children are better provided for, with maintenance payable until they are 25. Minimum Child Support Agency guidelines require 15% of salary to be paid in respect of the first child (up to a maximum £104,000 income ceiling), 20% for two children and 25% for three or more.
Yet the controversy surrounding the treatment of women, particularly when it comes to maintenance, or periodic allowance, as it is also called, divides lawyers and the sexes, but not always along obvious lines.
Many lawyers believe the 'clean break' regime operated by Scottish courts is unquestionably fair.
Fyfe Ireland family law specialist John Fotheringham argued: "Certainly the concept of a meal ticket for life does not exist in Scottish law, and I believe most people accept that approach is the correct one."
But Alasdair Loudon, head of family law at Turcan Connell, would like to see greater flexibility to extend maintenance beyond three years.
He said: "If you have clients in their early forties where the children have left home, then it is not unreasonable to expect the wife to retrain and go out to work.
"But the position is quite different for a 55-year-old woman who has been at home since her twenties. It is not realistic to expect her to find rejoining the workforce easy."
He would like the law to allow more discretion for maintenance to be ordered for a longer period.
But he is also concerned that the assumption that assets should be split 50/50 can penalise men and women for different reasons, and would welcome greater flexibility here also.
Last year 13,000 Scots marriages ended in divorce, and although it can be straightforward, cheap and quick if you have nothing to fight over, it all too often ends in bitter acrimony.
Couples with no money and no children can part company online, if they so choose, with quickie internet divorces starting at £25.
But once you have a collective home, particularly if you own it, any savings or a pension it is essential to seek advice. It goes without saying this is even more vital if children are involved.
Do not make the mistake of simply returning to the lawyer who bought your house. It makes sense to hunt down a specialist family lawyer.
The good thing about the Family Law Act is that it clearly set out rights and procedures, which leaves less to fight over. Few cases are contested all the way to a full-blown court battle in Scotland.
The first thing the solicitor will want to do is draw up a schedule of marital assets and value them, which requires the establishment of a relevant date at which they are to be valued.
This is the date at which the couple agree they ceased living as man and wife. Fotheringham said: "This date is very important. When you think how share prices can fluctuate and house prices soar it is easy to see how one or other party could lose out significantly if the date is set against them.
"A few months either way can make a huge difference, which is why couples sometimes can't agree a date. In that case, the court will decide."
Although the presumption is that the assets will be divided 50/50, the next wrangling may hinge on what is included in the matrimonial treasure chest.
The rows can become particularly acute with later and second marriages, where one or both of the couple comes into the relationship already owning a house, savings or pension. Alternatively, they may have built up a successful business or have significant share options in their company.
Finally, there is the question of what happens to any inheritance that comes your way before or during the marriage.
Again, Scottish law is quite clear and more generous towards the wealthier party than south of the border.
In general, assets owned before the marriage, or an inheritance during it, are outside the divorce settlement, which concentrates on wealth built up jointly during a couple's time together.
However, it is slightly more complicated than that. Loudon says: "If money from outside the marriage is put into the marriage, perhaps to buy a home together, then it can become the property of the marriage."
For this reason, those marrying for the second time should be particularly careful before restructuring their finances.
Rachael Kelsey, family law specialist at Pagan Osborne, said: "Often they buy new properties or reinvest pensions or savings during the marriage, not realising the enormous implications that this can have if they go on to separate."
The full article contains 1000 words and appears in Scotland On Sunday newspaper.
