‘Come together…but not in court’ - The Scotsman 24th March 08

John MacFie, Associate

While dwarfed by the reported $150 million (about £75.5 million) settlement awarded to Juanita Jordan against husband Michael, the US basketball star, the McCartney divorce is exceptional in the UK for its combination of high value and celebrity interest – it is not every day that we get an insight into the lives of an icon of music and his wife. Sir Paul has been ordered to pay his soon-to-be-former wife £16.5 million of his £387 million fortune as well as £65,000 per year for his four-year-old daughter's school fees and other extras, and £150,000 per year for two years for Heather Mills's security costs.

Mills had originally wanted £125 million. Sadly for her, the judge took a dim view of her evidence: when phrases like "not just inconsistent and inaccurate but also less than candid" are used by a judge, something has gone wrong for somebody, and it wasn't Sir Paul.

Before deciding on a settlement, the English courts will usually look at the whole income, plus earning capacity, property and other resources of a couple (including their future expectations), regardless of where the assets came from or when they arrived. That is why Mills's claim was so big: it is open season on a rich husband, within limits.

So how would the case have turned out in Scotland?

Here, the governing law is the Family Law (Scotland) Act 1985. Its guiding principle is there should be a fair division of "matrimonial property" – what has grown up during the marriage. What a couple owned before they married and inheritances are largely left out. A fair division starts as an equal one, although it can be varied one way or another. The result is that better-off spouses with lots of pre-marriage or inherited wealth should consider heading for Scottish courts if they have the choice.

Most of Sir Paul's property holdings came from before his four-year marriage. His wealth had increased during the marriage by £24.5 million, but was nearly all non-matrimonial. There would have been little matrimonial property for a Scottish court to divide. Even allowing for the unwillingness of the courts to leave a divorced wife without a bean, it is tempting to think the former Beatle may have been better off if he had lived on his Scottish estate and sought divorce in Scotland.

What can we mortals learn from the McCartney saga?

• &149 Keep out of court: litigation is ruinously expensive even if you are super-rich. Mills's bill by the time of the hearing had reached £1.1 million; Sir Paul's final bill may top £2 million. "Throw money at the problem, not the lawyers," is the saying.
• Keep out of court (2): If you can't agree a deal, the court will impose one and you may not like it. Look for other ways. Mediation is well established as a way to deal with cases privately and to the satisfaction of all.
• Keep out of court (3): nobody wants their dirty washing quite so publicly rinsed as happened to the McCartneys.
• Be reasonable: Mills was sunk in part because she made unreasonable claims that could not be backed up in court. No matter how much you want to make the other side hurt, there is a limit, and a good solicitor will give advice about where it lies.

Hey Jude, one of his greatest hits, was written by Sir Paul in his car while on his way to visit Julian, John Lennon's son, who was disturbed by his parents' divorce. He wrote it to cheer the boy up. Little did he know his own turn would come!

John MacFie is an associate in the litigation department of Gillespie Macandrew.