Lord Hope of Craighead took the opportunity provided by an English House of Lords appeal about financial provision on divorce to send a message to Scotland about the provisions of the Family Law (Scotland) Act 1985 which currently regulate the matter here.  His speech in Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, published 24 May 2006, is directed to the situation in the McFarlane rather than the Miller case.  In Miller, the former wife was awarded £5 million from the £17.5 million capital of the husband, to reflect her contribution to the growth of the latter’s wealth during the three years of the marriage and the high standard of living which both had enjoyed during that time.  In McFarlane the element of capital wealth was lacking; instead, the former wife had given up her high-earning career to look after the children of the marriage, and her husband’s high-earning career had continued to develop.  In this case the ex-wife was awarded £250,000 per annum for as long she needed it.  In Scotland, however, she could only have had such an award for three years, reflecting a ‘clean break’ approach.  This leads Lord Hope to the following comments:


118. With the benefit of hindsight, it can be seen how unfairly the

principle which section 9(1)(d) [of the Family Law (Scotland) Act 1985] lays down (it adopts the statutory convention avoided by the English legislation of referring to him” not “her”) discriminates against women. It operates harshly in cases where a high earning wife