The “Fair Share” and social change in divorce
Being asked to write a blog as part of job application is something new to me. I ask myself “how am I going to Impress…do I make it funny…Why can’t they just accept a CV and cover letter?” The truth is Family Law is always changing. It has a way to make even the most experience practitioners ask, “why has this changed?”. An example of this would be the bill to introduce a named person for every child in Scotland.
The family is always changing and the law needs to keep up with it. Perhaps one area of family law which has not caught up yet with the social changes in family is that of financial provisions in divorce proceedings. Traditionally, it has been seen that divorce happens and the wife leaves with everything including the dog. At least this is what Hollywood has lead us to believe. One Glossy mag tells the story of Bernie Eccelston and his $1.2bn settlement with his wife of 23 years, Slavica. How she was only in it for the money and fame. A 23 year sentence with Bernie clearly has its benefits.
By popular belief, and by the provisions found in the Family Law (Scotland) Act, each partner is entitled to a fair sharing of the matrimonial property. The court however takes into account personal circumstances in dictating what a “fair sharing” suffices to be. The court has taken the simple view in the past that the husband is out developing his career and the wife has been at home looking after the kids. Therefore, the wife is entitled to a higher percentage of the fair share.
This viewpoint is fairly draconian. The days of stay at home wives who make all efforts to ensure that “the tea is ready” for the husband coming home from work are long gone. Wives are directors, police officers, students. 80% of the legal workforce under 30 are female.
What does this mean for financial provisions in divorce?
The truth is we don’t know. In theory, because of the change in social dynamics in the household, we should begin to see a higher number of husbands being given the higher percentage of the “Fair share” and a change in the perceived status quo.
You could say that the provisions in the Family Law (Scotland) Act are equipped to deal with this change in society, however are the appliers of the law willing and able to make the step in recognising this? The widely recognised practice of paternity leave in employment shows that it is recognised that; fathers need to be at home and mothers want to be back at work.
Perhaps its seen as the omnipotent writings of the provisions in the Family Law (Scotland) Act, but you would certainly be able to apply these provisions regardless of the occupation, gender and sexuality. The issue is, are the people applying the law draconian in thinking? Are they stuck in the past while the law is eager to evolve? I do genuinely believe that when this is achieved, we will have reached a “fair share.”
This blog post was written by Fraser Napier, LLB (Hons), currently studying the Diploma in Professional Legal PracticeView all →