Differences affect divorce decisions

Legalities lead to a variance in divorce north and south of the border. Picture: Jon Savage

Legalities lead to a variance in divorce north and south of the border. Picture: Jon Savage

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Lucia Clark looks at cross-border legal variations

FOLLOWING the referendum last year, Scotland’s marriage to England has remained intact. Whether or not Scotland will eventually opt for the divorce route remains to be seen. That being said, Scotland’s legal system remains quite separate and distinct from that of England and Wales. In the area of family law, many people are perhaps not aware of the diverse outcomes which can result from ending a relationship north of Hadrian’s Wall rather than south. After all, it’s unlikely to be the first thing on your mind at such a difficult and emotional time. But the differences, in terms of financial outcome, guiding philosophy, and court procedure can be significant.

It is particularly important to obtain expert advice on divorce when more than one country is potentially involved, even when the two countries are both within the United Kingdom. Given the increasing ease with which couples move between countries, cross-border cases are a fast-growing area for our family law team, which now has three solicitors dual-qualified and experienced in both English and Scots law. We are well-placed to advise spouses as to what rules apply in linking a couple with a particular country, and which court may be better for your particular circumstances.

Here is a quick summary of the many differences between Scots and English divorce law – from which it could be said that the two legal systems have as much in common as Irn-Bru and tea.

The starting point in Scotland is equal division of the “matrimonial property”. The English position is much less definite – there is a list of factors to be taken into account, such as the welfare of the children, financial needs, income, the length of the marriage and the standard of living.

“Matrimonial property” is tightly defined in Scots law, being all property acquired during the marriage but before the separation, and any house acquired before the marriage for use as a family home. All pre-marriage, post-separation, and inherited wealth is firmly excluded, as are gifts from third parties. There is no such clear distinction in English law, although the courts may view such property as “non-matrimonial”, particularly in a short marriage.

The courts in England are much more likely to award long-term, or even life-time, maintenance to a spouse post-divorce – sometimes to allow the spouse to share in future wealth and income. In Scotland, the emphasis is instead on a “clean break”. Scottish spousal maintenance, if appropriate at all, is usually restricted to two or three years post-divorce.

Divorce can be quicker in Scotland – decree can be obtained on the basis of one year’s separation if your spouse consents, or two years’ separation without consent (compared to two or five years respectively in England).

Sweeping legal aid reforms in England and Wales mean very few spouses are now able to obtain government funding for divorce, resulting in a huge growth of party litigants – or spouses simply giving up on financial claims on separation. In contrast, legal aid is still available for family cases in Scotland. The difference in court charges is also significant – £141 for commencing divorce proceedings in Scotland, compared to £410 In England (possibly to rise to £550).

If drafted properly, with disclosure of assets, no undue pressure, and not in such a way that is “unfair or unreasonable”, pre-nuptial agreements are binding on both spouses under Scots law. In England, a pre-nuptial agreement is a factor to be taken into account – but one which can be overridden, for example by the needs of the claimant spouse. Although it is not possible to choose in a pre-nup which country will deal with a divorce, it is now possible to select which legal system will decide any issue of spousal maintenance – and given the wide difference between English and Scottish maintenance, this can change the financial settlement significantly.

In England, divorce is a two-stage process – decree nisi confirms the grounds of divorce are established, and decree absolute is the final decree ending the marriage. It is possible to obtain decree absolute, then deal with financial claims afterwards – in some cases many years after, as in the case of Vince v Wyatt. In Scotland, there is only one decree of divorce, which is final, putting an end to any financial claims relating to the marriage.

• Lucia Clark is a Partner and Accredited specialist in Family Law (Dual Qualified) with Morton Fraser LLP www.morton-fraser.com

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