Scotland: full-scale divorce litigation without marriages

In the Divorce Corp. movie, a litigator driving by a wedding said “that’s inventory.” What if learning about family court litigation makes people shy about getting married? How can divorce litigators maintain their prosperity? In most jurisdictions around the world, lawyers can still get paid to handle custody and child support litigation between never-married parties. Scotland, however, has an innovative solution that I learned about at the International Conference on Shared Parenting 2017.

Unlike France and Germany, the United Kingdom has a family law that varies from region to region. A person who is able to file a lawsuit in Scotland, for example, might not have a claim in neighboring England.

In 2006, Scotland changed its laws so that a person who says that he or she lived with someone else can, within a year “after the day on which the cohabitants cease to cohabit.”, go down to the family court and sue for property division and alimony, just as if the two parties had been married. “Court ruling hits couples who cohabit” (2012 article on litigation following a 6-year relationship with no kids) quotes a lawyer: “People may also not know that there is no minimum period to qualify as cohabiting.”

What can lawyers be paid to argue, and bring witnesses to testify, about? Assuming that no children are involved, at a minimum, the following:

  • whether the two litigants ever actually did cohabit
  • the date on which they began to cohabit
  • the date on which they ceased to cohabit
  • what property each owns
  • what property is jointly owned
  • what income each has been earning
  • what income each could have earned in the past
  • what income each could earn in the future
  • whether or not the plaintiff was disadvantaged by cohabiting with the defendant
  • whether the defendant was advantaged financially by cohabiting with the plaintiff
  • who supported whom during the cohabitation (because the judge might want to order that relationship to continue post-separation)

[If children are involved, and the defendant earns more than 3000 pounds per week pre-tax, there can be additional litigation on the profitability of the children. The UK government runs a calculator up to 3000 pounds a week of pre-tax income, which results in a tax-free payment of about 300 pounds per week to the parent who wins custody, i.e., roughly 20 percent of the defendant’s after-tax income. Median pre-tax weekly pay for a full-time worker in Scotland is 535 pounds. Therefore the plaintiff who has sex with two high-income partners and obtains custody of the resulting children is guaranteed to have more spending power than the Scot who marries and stays married to a median full-time worker.]

A quick Google search for how the law is being used in practice yielded a story about a defendant who was the part-owner of a plumbing business. He was characterized as a “tycoon” and reference was made to him flying “private aircraft.” It turned out that the “private aircraft” two attorneys were being paid to argue about was a two-seat “SkyRanger” homebuilt (airframe kit: roughly $20,000; I found an “always hangared” already-built example with 870 hours on it for $19,999 on barnstormers.com).

In litigation-oriented societies, I wonder if this Scottish idea will catch on. If the opportunity to litigate is a positive thing for people who were once married, why not for people who once lived together, however briefly?

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8 thoughts on “Scotland: full-scale divorce litigation without marriages

  1. So what is Alex Jones’ wife’s strategy?

    “Robert Hoffman, told NBC News he was unable to comment on the case due to a gag order — but confirmed the court’s verdict awarding joint custody and providing Kelly Jones with deciding power over where the children will live.”

    Does this mean she could take the kids to CA and override the lower TX rates of support?

    http://www.nbcnews.com/news/us-news/infowars-founder-alex-jones-discusses-custody-battle-n752406

  2. ” In litigation-oriented societies, I wonder if this Scottish idea will catch on. If the opportunity to litigate is a positive thing for people who were once married, why not for people who once lived together, however briefly? ”

    If Scotland is truly a “litigation-oriented” society, what’s to prevent lawsuit defendants from taking this to its logical conclusions: sue the litigators for emotional and psychological distress?

    “In 2006, Scotland changed its laws so that a person who says that he or she lived with someone else can, within a year “after the day on which the cohabitants cease to cohabit.”, go down to the family court and sue for property division and alimony, just as if the two parties had been married. ”

    How did these laws get passed? Were they passed by fiat? By secret ballot? Were they voted through by legislators while the voters weren’t looking? It’s not likely that these kind of laws would survive public scrutiny, if it’s ever subjected to such. Considering that there will always be one loosing party in such a lawsuit, at least 50% of the population has got to be opposed to this…

  3. Manxane: Thanks for the link. I am not familiar with this case or any of the people involved. That said, if the plaintiff were to take the children to California she would not be entitled to the higher child support profits available there, so long as her defendant remains in Texas. See http://www.realworlddivorce.com/Relocation for how these jurisdictional issues are resolved. (In most other countries the revenue yield of children is fixed nationwide (see Germany or Denmark) or at least determined by a national formula (see Canada), so they don’t need these rules.) “deciding power over where the children will live” might just be within the state. “Removal” (relocating with the children and continue to receive cash) is typically a separate lawsuit.

    [It seems like this case worked out well for the attorneys: “records obtained by NBC News revealed two years of weekly filings: multiple restraining and protective orders, dozens of subpoenas, videotaped depositions, and more.” Figure 20 hours/week for the lawyers on both sides = 2000 hours at $500/hour = $1 million.]

    Bob: “what’s to prevent lawsuit defendants from taking this to its logical conclusions: sue the litigators for emotional and psychological distress?” I think lawyers and judges have set things up so that there is no way to sue lawyers and judges. See http://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1285&context=plr (“Absolute Immunity from Civil Liability: Lessons for Litigation Lawyers”). The starting point is “absolute immunity”.

    Why would a democratic process result in laws such as this? If we assume that most plaintiffs will be female this is the kind of law we would expect if most voters are female. http://www.cawp.rutgers.edu/sites/default/files/resources/genderdiff.pdf shows that in the U.S. women outnumber men as registered voters (76 million to 66 million) and also outnumber men in percentage of registered voters who show up to vote. I don’t see why Scotland would be different demographically.

  4. >Considering that there will always
    >be one loosing party in such a lawsuit,
    >at least 50% of the population has got
    >to be opposed to this…

    >If we assume that most plaintiffs will
    >be female this is the kind of law we
    >would expect if most voters are female.

    I don’t know, but it seems to me that the typical special interests explanation is more likely. No one thinks they will be involved in such a lawsuit (until they are) so opposition from people who may be harmed will be weak and diffuse. Conversely, the small number of lawyers and activists have a lot to gain (per capita) and will therefore expend a lot of directed energy to achieving the goal.

  5. @Bob My guess is that in regards to middle class men they are often unaware of these laws and are instead busy with their job, sports or anything but considering family law. Particularly if you have an average salary you might think you wouldn’t be worth suing anyway. Of course, they often find out that only winning a few thousand per year will still be better than none for the winner and enough to make them upset.

  6. Any law that encourages litigation is good for the lawyers because it increases business opportunities. These laws are usually justified in terms of fairness — without explaining that there is a trade off between fairness and uncertainty. Take “best interests of the child,” which is the legal standard in any litigation involving children. Who could be against the best interests of a child? But it is hard to predict how a judge will interpret these words in the individual case — since except in extreme cases it is hard to know what is in the best interests of a child. This uncertainty encourages litigation because the outcome is hard to predict. This is good business for the lawyers but bad for the rest of society.

  7. This is now the law in British Columbia. After cohabiting for 2 years, a couple is legally in a state identical to marriage. The only difference is that when you actually marry this legal state begins immediately. The law was passed in 2013 so the first couples becoming de-facto married happened in 2015. As it was barely in the news, most cohabiting couples probably don’t even know this. I predicted that there would be a lot of surprised men starting in 2015. (Thankfully it did not grandfather previously cohabiting couples!)

    I think this is unique in North America. For now.

  8. Randall: Whoa! A whole (conifer?) forest of litigation from two years of shacking up!

    http://www.familylaw.lss.bc.ca/resources/fact_sheets/thinkingAboutMovingInTogether.php

    says people can fight about “You each get an equal share in the increased value of any property that either of you had before the relationship” and that includes “an interest in a business.” Cue $1 million in legal and expert fees for gathering evidence and testifying about the value of various aspects of the business.

    Then the lawyers can get paid to argue about whether or not it was a “marriage-like relationship”. The link is to https://wiki.clicklaw.bc.ca/index.php?title=Unmarried_Spouses and asks, for one of six bullet point factors, “Did the parties have sexual relations? If not, why not? Did they maintain an attitude of fidelity to each other? What were their feelings towards each other? Did they communicate on a personal level? Did they eat their meals together? What, if anything, did they do to assist each other with problems or during illness? Did they buy gifts for each other on special occasions?”

    The two-year minimum is waived if there is a child: “An unmarried couple who have lived together and had a child together are spouses who are eligible to ask for spousal support, regardless of how long or how short a period of time they lived together.”

    So it would be full-scale divorce litigation, not just child support and custody litigation, as in the U.S., if people live together and a child appears.

    I guess this will be how Canadians spend the fraction of GDP that they are saving on health care compared to the U.S. …

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