Differences between Scottish and English divorce law can leave wives worse off according to a legal organisation.
Consensus Collaboration Scotland is a north-of-the-border network of lawyers and financial experts working to promote alternatives to the courtroom for divorces and family disputes. Speaking to Scottish newspaper The Herald, member Denise Laverty noted that:
“One of the main differences between English and Scots divorce law, is the size of the pot of assets available for division in a divorce. Under Scots law, only the assets accrued between the date of marriage and the date of separation are taken to be matrimonial property.”
By contrast, she continued, when couples divorce in England all their assets can potentially be classed as joint property and subject to division on divorce, even if they were accrued prior to the marriage or via inheritance.
“This can benefit wives in England in several ways. For example, if the family home was bought by the husband prior to marriage and is in his sole name, under English law, a court could order that this be transferred to the wife. In Scotland, unless that house was purchased prior to marriage for use as the family home, then it would not be considered as matrimonial property.”
A further contrast, claims Laverty, is the greater emphasis placed on the welfare of children in English law. Scottish courts prefer an equal division of assets she says, while English courts will give more to the wife if she is primary caregiver of the couple’s children.
Family courts also approach maintenance differently in Scotland, the lawyer continued. North of the border, ‘ailment’ as it is called, is rarely paid for longer than three years and lifetime maintenance awards are largely unknown.
While Scottish family law has clearly defined rules and is more predictable in its results, south of the border judges have more discretion to vary their rulings according to the circumstances of each case.
This, Laverty concludes, “makes it more difficult to provide English clients with advice on the likely outcome if they put matters in the hands of the court.”