Messy Divorce

My closest friend is moving. The house at number 9 – the house which has become my second home these last 13 years – is sold. And she will be going back over the Border – to that sassenach country, England.

This ending has been painful for all concerned. An abusive marriage has evolved into an abusive divorce. With bells on. With lawyers being used to bludgeon with words. Courts become marital battlegrounds. Mediation pulled as unsuitable for this case. And a child used by her father as leverage.

My friend was the principal wage-earner and the house was in her name. In Scotland she has been caught out a bit by laws formerly touted as progressive because they were designed to protect stay-at-home women. But will also unintentionally give succour to controlling men who couldn’t hold down a job for inability to control their anger and rage (or hide their incompetence) – as a consequence of which they couldn’t have their names included on the mortgage and for which the conveyancing solicitor excluded this abusers name from the title deeds. Unintended consequences.

The law is one which I applauded – as a young activist – when it was introduced. The Matrimonial Homes (Family Protection) (Scotland) Act 1981 S1(1) gives occupancy rights to the non-entitled spouse. Basically – if you haven’t got your name on the deeds, as long as you occupied the house as a marital home then you continue to have a right to occupy even after seperation. This right has been used by abused women to remove their abusive (but property owning spouses) from the marital home. It actually operates to make it easier to exclude the entitled spouse (generally the man) from the house. In effect the non-entitled spouse (generally the woman who hasn’t got her name on the title) has enforceable rights to sole occupancy – which she wouldn’t have if title was held jointly. You can see how – at the time – this would protect primarily women who may have decided (or had no choice in the matter) to work within the home – caring for children or keeping the home fires burning.

Mr Almost-ex has used the threat of exercising his right under this law to intimidate my pal.

In addition, despite a history of being unable to hold down even the simplest of jobs this man has also argued that he sacrificed his career to support my pal in building hers. So he wants more money. He wants compensation for the damage done to his career. Another legal argument predominantly recognised as supportive of the female who stayed at home. But used by the Almost-ex.

My visceral reaction to his rights under this law have caused me to reflect on the unworthy hypocrisy of my own feelings and also the way in which Scottish society has changed since 1981.

There are fewer occasions now where both partners names will not be on the deeds and mortgage – reflecting economic reality, where both might not only want to work but where a double salary is essential if the household is to survive. So the protection offered by the 1981 Act has, in many ways, begun to outlive the reasons which gave it life.

Of course, rightly or wrongly, working or not, women still bear responsibility for the overwhelming majority of childcare and domestic chores. If working, a woman will (statistically speaking) earn less than her male colleague. She will be more likely to work part-time. She will be more likely to be the victim of domestic violence. She will be more likely to suffer disproportionate economic pain on divorce.

However, there are an increasing number of women who out-earn their partners. And some of those partners will do the childcare and sustain the home fires.

The unfortunate bit for my pal is that the law cannot properly distinguish between deserving and undeserving cases…(nor would I ever want that – fraught as it is with the risk of value judgements and prejudice – something the law is always at the mercy of). So, her undeserving almost-ex gets half of everything that she has worked so hard for. Half of the pension which was generated by the job he did his best to make it difficult for her to perform. Half of the substantial equity in the house which he did nothing to support. In fact – as it stands – he is currently fighting for an even greater share than 50%.

Because my friend earns she has had to pay the very big lawyers fees. But because her almost-ex earns nowt, he gets legal aid. This has fueled his vendetta and allowed him to use the law to bludgeon her.

The Sheriff (Judge) has expressed impatience with Mr Almost-Ex and his solicitor. He has received several warnings from the bench regarding his conduct. But it has just gone on and on and on. With him using their daughter and the question of contact/residency to further punish my pal.

Now, Mr Almost-ex has not cared for their daughter – despite being at home most of the time. In fact their daughter spent time with me when her mother was on business – or was in after-school care or similar. But now Mr Almost-ex has had a miraculous conversion. A damascene moment of clarity. He apparently sees the error of his ways and now wants to reverse 11 years of paternal neglect and incompetence – and assume full-time care.

As full-time carer, of course, he could claim more money from my pal…

Truth is – his chances of securing this are slim. But the courts must hear his applications. And my friend must suffer them.

My friend is cool with the 50% rule. She accepts that as the just and understandable cost of release. But his ability to continue to torment by using the law is so unjust.

And the righting of injustice is the primary reason I studied law.

All I can continue to do is support my friend. And it is for that reason that she and I are going out on Friday night. Staying at Malmaison in Leeds. For at least one night she and I are determined to forget all of our respective woes.