The research argues that English courts have largely failed to apply the "compensation" principle established in the landmark Miller/McFarlane decisions, leading to outcomes that may disproportionately disadvantage women following divorce. While the discussion focuses on England and Wales, it raises an interesting question for Scottish family lawyers: do we properly utilise the statutory tools already available to us?
A different statutory framework
Financial provision on divorce in Scotland is governed primarily by the Family Law (Scotland) Act 1985, which is built around a set of statutory principles rather than the broader discretionary approach seen in England and Wales. Scottish courts generally focus on the fair sharing of matrimonial property, alongside specific provisions dealing with economic advantage, economic disadvantage and the burden of childcare. This structure often leads Scottish lawyers to emphasise certainty and predictability. In comparison with England, there is generally less evidence of extensive judicial discretion and fewer exceptionally large awards for such elements of a claim.
However, the underlying policy questions are remarkably similar.
The economic reality of family life
The Exeter research highlights a concern that many family lawyers will recognise. During a marriage, one spouse may reduce their earning capacity, limit career progression or leave employment altogether in order to care for children or support the other spouse's career. When a relationship ends, those economic consequences do not disappear overnight.
In Scotland, the 1985 Act already acknowledges this reality. Sections dealing with "economic advantage and disadvantage" were specifically designed to recognise situations where one spouse has benefited from the efforts or sacrifices of the other. Likewise, provision can be made where one parent continues to shoulder the economic burden of caring for children after separation.
Yet practitioners will know that proving and quantifying these claims can be challenging in practice.
A growing focus on gender and financial outcomes
One of the most striking aspects of the English research is its emphasis on post-divorce inequality. The argument is that women often experience poorer financial outcomes because they are more likely to have taken on caring responsibilities during the marriage. Although Scotland's legal framework differs, the social and economic realities are largely the same.
Women's earnings continue, on average, to be more significantly affected by childcare responsibilities. Career interruptions, part-time working and reduced pension accumulation can all have lasting effects long after a marriage has ended. As wider societal discussions increasingly focus on gender equality and economic fairness, it is almost incumbent on us as family law specialists to see litigants seeking to place greater emphasis on these broader economic consequences when advancing claims under the 1985 Act.
Could Scottish courts be receptive?
The most likely route for such arguments would be through the existing statutory concepts of economic disadvantage and childcare-related disadvantage. Rather than importing an English-style compensation principle, Scottish litigants may argue that courts should adopt a more expansive interpretation of the provisions already available. They may contend that the long-term reduction in earning capacity resulting from caregiving deserves greater recognition when assessing fairness between former spouses.
Such arguments would not require a fundamental change in Scots law. Instead, they would invite courts to examine more closely the enduring economic impact of decisions made jointly during a marriage. Whether the judiciary would embrace that approach remains uncertain. Scottish courts have traditionally been cautious about departing from the statutory framework and have often emphasised the need for claims to be supported by clear evidence. Clients do not have the resources to be the test case.
Looking ahead
Family law never operates in isolation from wider social and economic developments. The concerns emerging from England reflect broader debates about how the law values caregiving, shared family decision-making and economic partnership within marriage.
For Scottish practitioners, the Exeter research serves as a useful reminder that the concept of fairness extends beyond the division of assets on the date of separation. It also raises important questions about how the law should respond to the lasting financial consequences of family life. While Scottish family law already contains mechanisms designed to address economic disadvantage, there may be increasing pressure to ensure those provisions are being used in a way that fully reflects modern realities.
The debate unfolding in England may therefore be worth watching closely. It could provide the foundation for the next generation of arguments about fairness, equality and financial provision in the Scottish courts.
