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Scottish divorce law ‘leaves wives worse off’

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.”

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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  1. Mr T says:

    The Scottish law seems fairer to me. Let’s make that English law too!

    • Lorraine Smith says:

      This is not fair.. what if she paid the mortgage for him but they were just dating or engaged.. happened to my niece… she practically remodeled the house for him and after she was broke he decided to cheat on her and she got nothing because they were not married. ( domestic partnership.).. This was a business they started together.. he kept the bank account on it.. so she was just like a friend ..even though all her time and money was used.

  2. D says:

    So the real headline being the Scottish system being more predictable outcomes, which is desirable legally but perhaps not so desirable from the point of view of those doing the representation. The two systems are different in terms of there approaches, but at least seem consistent to their aims. I don’t believe the implication that the Scottish system neglect the emphasis on welfare for children; this is down to details around assignment of property/assets by the English system.
    Of course the salient points being drowned by headlining with a shouty stereotype gender card. The two systems take (perfectly valid (?) ) different approaches and there will always be perceived winners and losers… and these winners and losers will change as society changes.

  3. Stitchedup says:

    “leaves wives worst off” is that a relative statement? i.e. wives in Scotland are worst off than wives in England and Wales… if so, so what? doesn’t mean it’s wrong just perhaps that men get a fairer deal in Scotland. What’s the point of the article exactly?? it seems to me the comments could be taken to imply the English system isn’t fair as assets accrued before marriage can be taken into account, and I think most people would agree… why should any person have a claim on the assets of a spouse which were built-up before they married?

  4. spinner says:

    “only the assets accrued between the date of marriage and the date of separation are taken to be matrimonial property.” – So they are worse off because money that is nothing to do with the marriage is given to the wife, sounds like a much better system.

  5. Albert says:

    Man, Scotland’s divorce law sounds MUCH fairer!

    Getting “only” a fair share of the assets accrued AFTER marriage seems much more just, and I simply cannot imagine why the English courts would see it any differently. If that were applicable “down here” it would save a tremendous amount of money being spent on lawyers — and there’d be far less aggro.

    The fact of the matter is, that it is ABSURD that it should cost men like me SO much to defend an action by a scheming, scammer wife — who planned the whole thing from Day One, and still GETS Legal Aid (or got it, under the old rules) — while I, the main breadwinner (but only just), gets NO help at all! It cost me over 150,000 overall, to first defend, and secondly to appeal, because of the incompetency of my (female) lawyer — who would NOT pursue my steadfast belief (of which only NOW I have the proof — probably too bloody late!) that she was and is, a BIGAMIST.

    So, 150K — for WHAT?? When my lawyer made mistakes — and the (also female) judge really couldn’t have cared, her mind pretty well made up on the basis that (a) my ex never, ever appeared at any hearing, and (b) that she must therefore be so impecunious that, for sure, she deserved over 300,000 — about half what she earned during the marriage — just because I appeared to “have” it, or could probably realize it within the next six months.

    And the fact that the judge COULD have ordered my ex to provide the birth certificates of her first husband’s children which, in her country, effectively prove they were married (divorce not being allowed there). But the judge simply would NOT — and my lawyer was too afraid for her career prospects to tussle with the judge, to try to GET them — meaning that I COULD NOT GET JUSTICE.
    That, even when I gave up on my useless lawyer, and fought MY OWN appeal “out of time”. Because I had had to amass my own evidence of her REAL (and obviously substantial) assets — another failing of my indolent lawyer — and those awarding legal aid.

    Because then, when I was told by the judge that she was not “allowing” my appeal, she did not BOTHER to advise me — an LiP, who obviously would not know — that I could STILL APPEAL HER DECISION NOT TO ALLOW ME TO APPEAL!! I only found that out when it was WELL “out of time”!

    And all because I really couldn’t AFFORD to keep paying out on lawyers, just to get JUSTICE!! That is the tragedy behind “Legal Aid” for those who actually manage to “con” their way into getting it — while the poor buggers who have to PAY, end up with getting NO JUSTICE whatsoever!

    To those who might think to point out that even bigamists can claim a settlement, and “it probably doesn’t make a lot of difference”, I’ll make a very salient point: It shows that they are determined LIARS, and so their entire evidence is suspect — especially when they NEVER come to court to even be SEEN by the judge, let alone face cross-examination.

    THIS is the state of “justice” — and as far as I know, there is really NO entity one can complain to. (At least, not without it costing you, AGAIN, another arm and a leg!) You certainly won’t get anywhere complaining about a JUDGE (no LAWYER would ever take THAT on!), even if you can approach the Law Society regarding the indolence and lack of initative of a humble (but expensive) lawyer.

    So — what do you do? Suffer in silence, knowing of course that there are FAR bigger miscarriages of justice? Or do you TRY to make a point — somewhere? Because if YOU don’t, the system will never respond, let alone reform — and many other poor sods will catch it in the neck, AND in the pocket — and MORE INjustice will be done. All because you refuse to play the game — established over hundreds of years — of getting and PAYING (handsomely) for a lawyer — when true JUSTICE cannot and should not rely on how much MONEY you can spend on them! Even to obtain a “fair” division of assets, following the breakdown of a “sincere” and honest marriage.

    Fighting a professional “scammer”, you’ll certainly never get anywhere near “justice”.

  6. SR says:

    The statement “leave wife worse off” is incorrect. I am a woman that resides in Scotland and has always been the breadwinner in the relationship. If it wasn’t for this Scottish Law I would not be able to move forward and provide for my children and their future. I want to start afresh and with what I have managed to save during the separation, will allow me to do that, especially since I have not received a penny from my ex for nearly 2 years.

    That statement is outdated, someone please amend it to reflect the current times.

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