The British media love divorce cases – they often provide intriguing glimpses into the lives (and finances) of the rich or famous. However, Scottish and English divorce laws are very different so you shouldn’t ever assume that anything you read about an English divorce case will apply north of the border.
Where to divorce?
There are cases where both the courts in England & Wales and the Scottish courts could deal with a divorce. Often that happens because a couple moves between the two jurisdictions, perhaps with properties in both countries, or one of them might have moved after separation. If the wife is living in Scotland and the husband is in England, either of them could start divorce proceedings in the country they are living in. The generally perceived wisdom is that it can be better (financially speaking) for the husband to divorce in Scotland, and better for the wife to do it in England. That’s because the Scottish courts are often seen as “meaner”, especially when it comes to ongoing maintenance. Scottish law means that typically a spouse who was wealthy pre-marriage or has inherited assets will do better there. A spouse who is looking for maintenance or housing costs for an indefinite period will probably do better in England.
When it comes to choosing which country to divorce in you don’t necessarily have free reign, and there is no race to get to court quickest. There are rules which govern which court should deal with the case. Basically, where there is a dispute about jurisdiction, the courts of the country where the spouses last lived together will win, and the divorce will be decided there.
What are the differences between Scottish and English law?
‘No fault’ divorce
This is a hot topic at the moment. There is currently a persuasive campaign underway to introduce ‘no fault’ divorce in England and Wales. At the moment a would-be English divorcee must show the marriage has broken down irretrievably, because of one party’s adultery, unreasonable behaviour or desertion, or because they have lived apart for two years (five years if one spouse doesn’t agree to the divorce). The proposed change would remove the need to use these grounds.
In Scotland, the grounds for divorce were the same up until 2006, but then they were amended – importantly the separation periods are now one year if both spouses agree to divorce, or two years if they don’t, and the concept of desertion has been abolished.
The difference is not just a small matter of numbers. With shorter separation times allowed, 95 per cent of divorces in Scotland are granted on these ‘no fault’ grounds (either one or two years’ separation), whereas in England and Wales 53 per cent of divorces initiated by men and 68 per cent of those initiated by women are on the grounds of adultery or unreasonable behaviour. This frequently makes an already difficult and distressing process more acrimonious and even harder than it needs to be. The law in Scotland opens the way for divorce to be a much less accusatory process.
In Scotland the financial arrangements between spouses must be resolved before they are divorced. The money side of things is sorted out by agreement, or if that isn’t possible by the court. The divorce is absolutely the final line drawn under the marriage. By contrast, the grant of divorce in England may precede the financial settlement. Media stories of spouses returning to court post-divorce to renegotiate a financial settlement couldn’t happen in Scotland.
Matrimonial property and splitting it
In Scotland the concept of matrimonial property is crucial. The assets which are to be divided on divorce are only those which are “matrimonial”. This means assets acquired by either spouse during the marriage, and before the date of separation, other than by way of inheritance or gift. So, anything which was owned pre-marriage, inherited during the marriage or acquired after separation is simply excluded from the pot of assets to be divided. This is different from the position in England where the couple’s assets are all considered to be relevant to the overall settlement.
Scottish law presumes that a 50/50 split of the matrimonial property will be fair. That’s always the starting point and equal division will only be departed from in special circumstances.
This is a crucial difference between the two jurisdictions. In Scotland ongoing maintenance will only be awarded if the split of the assets would be inappropriate or insufficient, and then only for a maximum of three years post-divorce, except in exceptional circumstances. That’s the clean break principle in operation and Scottish courts are much keener to apply that than English ones.
Other differences include the existence of a whole separate legal regime for people living together without being married (cohabitants). In Scotland cohabitants have had rights enshrined in statute since 2006. In England they have none. Prenuptial agreements are generally enforceable in Scotland without question, whereas they are routinely scrutinised by English courts and often not enforced.
The important thing to note is that the differences between the two systems of family law are significant. In a case where there is a lot of money at stake, or even one where the assets are more modest, whether you divorce in England or Scotland could have a huge impact on your future.
Alison McKee is Head of Family Law at Scottish law firm Lindsays. She is accredited by The Law Society of Scotland as a specialist in both Family Law and Child Law. Alison has over 19 years of experience and has worked exclusively in the areas of family and child law for the past 12 years.