Michael Herman, Law reporter
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Gerry Cunningham is a lucky man. This morning his estranged lottery-winning wife Angela promised to share her winnings but under Scottish law she has no obligation to be so generous.
In Scottish family law, which is radically different from that in England, the crucial point in a marriage breakdown is the date of separation and lawyers say that what happens subsequently is “largely irrelevant”.
Although they are still married, the Cunninghams separated eight years ago and so Gerry has no legal rights to a penny of the £35 million his wife won in the Euromillions draw.
Leonard Mair, an expert in Scottish family law at Morton Fraser, said: “When a couple separates in Scotland a list of assets and liabilities is drawn up and divided between each side. After that neither has any claim on the other’s future income or assets regardless of whether their situations change before they get round to actually divorcing.”
“Divorce in Scotland is simply an administrative step rather than a platform to squabble about money and children,” Mr Mair added.
While it was not immediately clear today whether the Cunninghams did draw up a formal separation agreement to divide their assets, lawyers said that even if they had not, Mr Cunningham would struggle to convince a court he was entitled to a share of the jackpot.
Scott Cochrane, a family law partner at Brodies, said: “Scottish law takes the concept of a clean break on separation very seriously. Even if the Cunninghams did not formally divide their assets on separation, if they now decided to divorce the courts will use the time they separated as the key point and ignore what has happened since.
“The fact that Mr Cunningham, according to reports, has not lived with his wife for several years is a slam dunk: he would have no hope.”
According to Mr Cochrane, if the Cunninghams do now decide to divorce then Mr Cunningham’s best prospect – aside from appealing to his wife’s generous side – would be to claim maintenance payments.
“He could apply for maintenance payments for three years after the divorce. But these will be based entirely on his current needs and the amounts we are talking about are hardly likely to dent his wife’s millions.”
If the Cunninghams were English and decided to fight over the money, the situation would be very different.
Tom Farley-Hills, a solicitor at Speechly Bircham, said: "In the English courts the starting point would be to divide all of the capital - including Mrs Kelly's winnings - equally between her and her estranged husband, even though they had already separated."
Since they are still married, Mrs Cunningham's lottery winnings would be considered part of the "matrimonial pot" according to Emily Watson, a family solicitor at Kingsley Napley.
“Although there is recent case law indicating that assets acquired by one party after separation can, in certain circumstances, be kept separate, this would be entirely within the discretion of the Judge, who would consider a number of factors, including the length of the marriage and Gerry's needs, which can be generously interpreted," Ms Watson said.
"As they have been married for 20 years, his claim is stronger than if this were a short marriage. Additionally, the Court would give priority to the needs of their 14 year old son."
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Jenny, as a man who divorced his wife after many years of struggling through her mental illness and violent attacks, who has custody of his children, but still makes all attempts for his ex wife to be able to have contact with them, I feel that you are missing the whole point of contact. The children have a right to have contact with their father. For you to deprive them of that right and in some way convince them that their father is a bad man because he was spiteful to you after you had an affair is sickening.
The fact that your will power was not strong enough to resist the advances of another man is a shame, but the fact that your partner loved you and was upset is only a natural reaction. I don't know your personal circumstances, but unless there is a threat to the childrens welfare, you have no right to keep them away from him.
Unfortunately the spite of mothers like you wastes millions of pounds in legal aidf and blights childrens lives.
Shame on you
Hamish, Dundee, Scotland
Maybe Angela Cunningham feels the same way about Gerry Cunningham as I did about my ex-husband: a sort of protectiveness mixed with good memories which can never quite be overwhelmed by the things that caused them to part.
Separation needn't necessarily mean a couple hate each other ... just that when they live together they make each other desperately unhappy for one reason or another. Sometimes, deciding to separate means you can get back to actually liking each other!
Susie, Turriff,
To those responding to the post by 'Jenny' could I mention that it seems to me to be so illogical , that doubt it is genuine.
It could possibly be the hurt 'father' in the scenario trying to write of his hurt and frustration by using his ex partners 'voice'.
Lucy, London,
''Lets hope the English electorate gets it's `divorce' from the union heard in Scotland. ''
Barbara Knight, London , England
Barbara,
what an excellent observation !!
Are you thinking of being in English politics...no world politics ? - You have encompassed all the aspiration of the supine English taxpayer in a single brilliant observation. I would propose marriage but fear you may easily summon a similar quality response from which I may never recover.
cj , whitehaven, England of course
Why is everyone so bothered about Angela Cunningham giving her estranged husband some money?
Has anyone considered that she might just be a nice person and want to see the man she has been married for twenty years to right?
If he still plays a large part in her life by virtue of their son, his being able to provide a better standard of living (which her money will afford her) for their son will surely be in their interests.
She could have said no... she didn't. End of discussion as far as I can see.
Steven Appleton, Bradford, England
In so many ways the Scottish legal system works better and interprets fairness properly when compared to English law. It defies rational thought that Labour ministers can't copy systems north of the border that patently work well but no, they have to dream up some cockamamie scheme thats totally flawed. House conveyancing has worked well in Scotland for decades but England gets HIPs, a scheme that does nothing to benefit either party and is just another stealth tax. Family law is a very sick joke in England where again, the victims are in a lottery of what the settlement may or may not be. No account is taken for the rights of the father and even the best interests of the children are ignored. Health care, old age provision, the list is endless for good schemes that help the vulnerable in Scotland but in England this sick Labour government arrogantly ignores peoples suffering.
Mike, Alicante, Spain
RE Jenny London, I am very dissapointed to see such a bitter view no one should take the right away from a father to see his children, why on earth would you make your children suffer for your (parents) mistakes.
tes, yorkshire, england
Why is it morally right for her to share the winnings?
They have been separated for years.
Would you share with any of your ex partners??
Dawn, Milton Keynes, UK
jenny not every single or divorced mother in the UK wishes for their children never to see their father again just because they are spiteful, it is silly to suggest that kids shouldnt be allowed to see their father after a divorce, how would you feel if the tables were turned?!
sara, ireland,
Lets hope the English electorate gets it's `divorce' from the union heard in Scotland.
Barbara
Barbara Knight, London , England
This article highlights just out how ridiculous the divorce law in England has become.
Why on earth should a seperated spouse have ANY claim on amounts that the other comes by years after they have split?
Please let me know.
Pete, Bristol, England
Good girl, give him a couple of bob for a wee dram to toast your lucky win. I must admit Scottish Law seems much more
sensible than the English equivalent. It avoids massive legal battles using exhorbitantly priced solicitors dragging it out endlessly for all that it's worth. It is much more practical to share out the assets at separation and have done with it. Angela seems to be a kind person so he may be lucky.
Alan Bond, Miami , FL USA
Please, please - 'Scots law' not Scottish law.
Very good article though, highlighting the strengths of Scots law in general: objectivity, and as the poster above says the ability to have a clear-cut line. This turns up time and time again when you compare Scots to English law: divorce, contract, property, inheritance. A legal system is nothing if it cannot be understood without recourse to judicial discretion in each and every case!
Adam, Edinburgh, UK
Jenny said (amongst similar statements):
"The law in England is right, after a divorce the man should get nothing and that includes never being allowed to see the children. "
Jenny, I am sorry indeed if a man has treated you so poorly as to wish to inflict this on him, and on your children, let alone all other children from broken relationships.
Ian Johnson, Christchurch, New Zealand
As a single mother I think the female should keep all winnings from a lottery win, but if the man won the same ammount in the UK then the father should get nothing.
This is the law in England for all sperations and divorces and because it is totaly ilegal in the UK for the father to see or speak to the kids after a seperation / divorce why should the father have any money?
If I won that ammount I would seek a good lawyer and move my kids to the farest place in the world just to make him suffer for having a go at me when I had an affiar.
The law in England is right, after a divorce the man should get nothing and that includes never being allowed to see the children.
The courts help mothers in this regard anyhow by allowing the mother to state a raft of false sexualy allegations which are never proved and said so as to make the father fear seeing his children.
This women who won this money should give her ex nothing, and she should deny access like the mothers in the UK.
Jenny, LONDON, UK
They have been apart for 8 years???? The right thing to do is to tell him to b****r off! There is not one single logical or legal reason on earth why this guy is entitled to a penny!
Mike, Lancaster, UK
The Scottish law seems to be clear-cut and the English one designed to cause friction and line the pockets of lawyers. Which would you prefer and what would you do in the same circumstances?
The morally right thing to do is share the winnings and keep well away from lawyers, they have only self-interest at heart.
David Thijm, Stourbridge, UK