Divorce law leaves Scotswomen facing repossession; The 'clean-break'

Thousands of women could face the prospect of their homes being repossessed following the endowment scandal because Scotland's draconian divorce laws will prevent them seeking further financial assistance from their former husbands, as is possible south of the Border.

English lawyers are expecting a flood of applications from former wives attempting to reopen divorce settlements. Although it will be difficult to alter clean-break agreements; where maintenance is being paid, former husbands may well be forced to foot the bill for the shortfall.

However, Scottish women are not entitled to maintenance in the same way as their southern sisters, because the law here takes the view that marriage is not a "meal ticket" for life. All divorces are viewed as a clean break.

Assets in a marriage are valued on the date of separation, and after that each partner is on their own - however their circumstances may change. Family lawyer Shona Smith at Balfour Manson admits that Scottish law is much harsher in its treatment of women, than English law.

"It is particularly hard on a woman who may get divorced in her mid-50s, for example." she said. "If she gave up work in her 20s to look after her family, she will have virtually no prospect of re- entering the workforce."

Many such women could now find themselves being kicked out of their homes as they approach retirement, because an endowment shortfall leaves them unable to pay off their mortgage at the end of the term. Already in difficult financial circumstances, they will have no spare cash and no means of raising any.

Crucially, they will also have no legal right to go back to their former spouses, many of whom will be close to picking up gold-plated final salary pensions.

Before December 2000, pension transfers were not available to wives, but since then they have been made so. In most cases, therefore, the wife typically got the house and any endowment policies or other free investments, while the husband kept the pension.

The house gave her security for the future, with the expectation that any mortgage would be repaid at the end of the term, and she could either stay in it, or in some cases, she may have wished to move to a smaller property to release cash to live on in retirement.

Many of these endowments are now falling short by anything up to (pounds) 30,000 or (pounds) 50,000. In England, lawyers believe courts may well force the former husband to take out another loan and increase his maintenance until it is paid off. But under Scottish law that will not be possible.

Lynne Dibiasia, of Aitkens, the family law solicitors said that in Scotland all financial rights are exhausted on divorce and you can't go back and claim anything else. She added: "English-style maintenance doesn't really exist. It is very unusual for a court to award long-term maintenance. Once the marriage is over there is no dependency."

Smith agrees: "It may sound very harsh but as far as Scottish law is concerned, a divorced woman is in exactly the same position as anyone else facing an endowment shortfall. She has an obligation to deal with the matter herself."

The Fawcett Society, which campaigns for financial fairness for women is deeply concerned at what it describes as a major problem looming on the horizon.

It believes that politicians will come under pressure in England to make the reopening of divorces even easier, in order to prevent financial hardship for thousands of elderly divorcees, who might otherwise be forced on to state benefits.

Vice-chair, Michelle Mitchell said: "We are very concerned that many women will find themselves facing extreme hardship later in life, and politicians need to take note.

"The last thing any government will want is more elderly women facing retirement either homeless, in poverty or being thrown back on to the state because of endowment failures."

The Scottish parliament may find itself coming under pressure to amend the law in some way to help these women remain in their homes.

Copyright 2003 SMG Sunday Newspapers Ltd.
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