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Legally Binding Separation Agreements and Private Ordering in Family Law in Scotland

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Legally Binding Separation Agreements and Private Ordering in Family Law in Scotland Edinburgh Research Explorer All Settled? Legally binding separation agreements and private ordering in family law in Scotland. Citation for published version: Mair, J, Wasoff, F & Mackay, K 2013, All Settled? Legally binding separation agreements and private ordering in family law in Scotland. CRFR, Edinburgh. <http://www.crfr.ac.uk/projects/current-projects/all- settled-a-study-of-legally-binding-separation-agreements-in-scotland/> Link: Link to publication record in Edinburgh Research Explorer Document Version: Publisher's PDF, also known as Version of record Publisher Rights Statement: © Mair, J., Wasoff, F., & Mackay, K. (2013). All Settled? Legally binding separation agreements and private ordering in family law in Scotland.Edinburgh: CRFR. General rights Copyright for the publications made accessible via the Edinburgh Research Explorer is retained by the author(s) and / or other copyright owners and it is a condition of accessing these publications that users recognise and abide by the legal requirements associated with these rights. Take down policy The University of Edinburgh has made every reasonable effort to ensure that Edinburgh Research Explorer content complies with UK legislation. If you believe that the public display of this file breaches copyright please contact [email protected] providing details, and we will remove access to the work immediately and investigate your claim. Download date: 04. Oct. 2021 All Settled? A study of legally binding separation agreements and private ordering in Scotland Final Report Dr Jane Mair Dr Kirsteen Mackay 1 2 Contents Acknowledgements List of tables Summary Chapter 1: Background to the study: research, social and policy context Background to the study: changing law and legal practice The social context Aims and objectives of the study Research questions Research methods Chapter 2: The law relating to minutes of agreement Marriage contracts Clear statutory framework Registration Limited challenge Concluding comments Chapter 3: A profile of minutes of agreement: their content, extent and the parties who make them The number of agreements What type of agreements? Who makes agreements? In-depth interviews Property The family home 3 Pensions Capital sum or consideration Spousal support and periodical allowance Children The legal process Chapter 4: Property: the family home The legal context Owner occupation Who stays who goes: the status quo The initial arrangements Agreements about the home Occupancy rights The place of third parties Consideration and capital sums Tenants: the missing dimension? Chapter 5: Property: pensions and their redistribution Pensions in the earlier study The visibility of pensions in 2010 agreements Reasons that pensions are shared (or not) Trade-offs Trade-off risk Equal pensions Relationship objectives Chapter 6: Property and ongoing support: other assets and debts: periodical allowance Statutory context Other assets 4 Debts Periodical allowance Equal sharing Chapter 7: Children: residence, contact and child maintenance Legal framework: residence and contact Legal framework: child maintenance The number and ages of children in the data set Relationship type and children Residence Contact Parties’ perspectives on fixed contact times Child maintenance Durability of private agreements on child maintenance Amount of child maintenance and how it was calculated Termination of maintenance payments for children A note on adult dependants Chapter conclusion Chapter 8: Parties’ perspectives on their minute of agreement When parties seek legal advice Separate legal advice Nature of the advice received Parties’ assessments of ADR Role of lawyers in reaching agreement Cost of legal advice Sticking to the agreement Life after agreement Satisfaction with the agreement Concluding thoughts 5 Chapter 9: Solicitors’ perspectives on minutes of agreement Reaching agreement with and without the use of courts Bargaining in the shadow of the law Explaining the law The matrimonial property pot Fair share of matrimonial property: ss9(1)(a) and 10(1) Economic advantage and disadvantage: s9(1)(b) Cost of caring for the children: s9(1)(c) Post divorce hardship: s9(1)(d) & 9(1)(e) Durability of agreements Solicitors’ perspectives on alternative dispute resolution (ADR) Benefits of ADR Chapter 10: All settled? A clean break? Fair and equal In the shadow of the law All settled? Appendix 1: Research methodology Appendix 2: Data collection sheet Appendix 3: Interview Questions for parties Appendix 4: Interview Questions for solicitors Appendix 5: Checklist Appendix 6: Sample minutes of agreement (separation) Appendix 7: Sample ante-nuptial agreement Appendix 8: Information leaflet 6 Acknowledgements The authors wish to acknowledge the support they received in producing this work from: The Economic and Social Research Council which funded the research; Jane Brown and her colleagues at the National Records of Scotland for their generous help with data collection; The Family Law Association of Scotland for their help with publicising the research and the family law solicitors who agreed to be interviewed and who shared their experience of minutes of agreement; The men and women who were interviewed for this study to whom thanks are given for telling us about a difficult period in their lives. 7 List of tables Table 3.1. Types of property mentioned in minutes of agreement Table 3.2 Standard clauses used in minutes of agreement Table 4.1 Residence in the family home at time of agreement Table 4.2. Agreements made about the family home Table 4.3 Method of payment Table 5.1 Percentage of agreements that mention pensions and discharge claims to them by length of relationship Table 6.1 Division of furniture and plenishings Table 6.2 Other significant assets Figure 7:1: Whether residence is mentioned by age of youngest child at time of Registration Table 7:2: Who the child lives with by age of youngest child at time of registration Table 7:3 Whether child support agreed by age of youngest child at time of registration 8 Chapter 1 Background to the study: research, social and policy context Background to the study: changing law and legal practice In Scotland, as in other jurisdictions, the great majority of families organise the aftermath of separation, without recourse to the courts, through a process of private ordering typically supported by legal and other professionals. This report presents the findings of a research study of private ordering in one family justice system, and its outcomes in the form of minutes of agreement (MoA). Scots family law seeks to encourage parties to negotiate and reach agreement on ancillary matters, in the context of the breakdown of adult intimate relationships, without recourse to the courts. The objective of reaching private agreement has been promoted as a means of lessening conflict, encouraging settlements, which accommodate and reflect the diversity of families and the needs of individuals, and contributing to the reduction of pressure on the civil court system and associated public funding. Changes in both family law and practice are likely to have influenced the extent to which individuals choose to conclude private ordering with a MoA rather than to pursue judicial action. However, there has been only limited research evidence to date upon which to assess and analyse the extent to which such individual agreements and the actions of the parties are influenced or informed by the legal provisions and practice, that is, how much these agreements are made “in the shadow of the law”.1 In Scotland, if consensus results from the private negotiations of the parties, it is likely to be recorded in a formal written agreement, known as a minute of agreement, which will usually be registered for preservation and execution in the Books of Council and Session. Such agreements are documents of public record and are stored centrally in the National Records of Scotland, and they are legally enforceable. Earlier research into the substance and outcomes of such minutes of agreement was conducted by Wasoff, McGuckin and Edwards in the mid-1990s2 but since then there have been a number of significant changes which are likely to have had an impact on the nature, scale and outcomes of private ordering on separation. 1 Mnookin and Kornhauser, “Bargaining in the Shadow of the Law: The Case of Divorce” (1979) 88(5) Yale Law Journal 950. 2 Wasoff, McGuckin and Edwards, Mutual Consent: Written Agreements in Family Law, 1997. 9 The use of MoA in Scotland, in the context of the breakdown of family relationships, is set against the background of the Family Law (Scotland) Act 1985. Section 9 of that Act sets out a clear and detailed framework of principles by which financial provision on divorce can be justified, and in terms of which the courts can make orders for the division of property and financial provision. It is thought that making “the rules of the game” clear in this way, and reducing judicial discretion, will encourage parties to reach agreement without recourse to the courts, as this case note comments: “The 1985 Act has been successful mainly because awards are fairly predictable so that couples can settle their claims without litigation.”3 While the courts retain power under section 16 of the 1985 Act to vary or set aside terms of a MoA, they may only do so in certain limited circumstances and this also encourages the use of private agreements. The agreements studied in the earlier research 4 were made in 1992 and although the section 9 principles for financial provision on divorce were in force at that time they were relatively new. Since then there have been many judicial decisions concerning the principles and family lawyers are now very experienced in their operation. It was anticipated that this would lead to an increase in the use of MoA and may also have influenced their content. In recent years there have been other statutory reforms, which are likely to have increased the use of and influenced the nature of MoA.
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