Happy New Year to all our readers and we hope you had a lovely time over Christmas and New Year. We are always impressed by the Scottish Hogmanay celebrations, the first-footing and enthusiastic renditions of Auld Lang Syne. They really know how to celebrate the New Year north of the border, despite the cold and rain!
So, with our Scottish friends in mind, we thought we would take a look at how divorce law is different in Scotland. We have blogged before about the Scottish approach to cohabitation law but not so far about the different approach to divorce. You may have heard tales of wives left without maintenance, or husbands duping their wives into moving to Scotland only to secure a divorce more cheaply there, so what is the actual situation under Scots law, and to whom does it apply?
For starters, the Scots do not have county courts and the High Court, rather they have the Sherriff Court and the Court of Session. The legal language is different too – rather than petitioners and respondents they have the wonderfully medieval sounding pursuers and defenders. Divorce is not a two stage process, with decree nisi and decree absolute, as it is in England, rather there is one decree granted after the financial arrangements are sorted out.
The grounds for divorce in Scotland are a little different to ours: adultery and unreasonable behaviour are common to both countries. However, for divorces proceeding on the basis of a period of separation, there are differences. Whereas in England we have the options of 2 years’ separation with consent, 5 years separation without consent and (the rarely used) desertion, there are shorter specified time periods in Scotland: divorces can be commenced after one year’s separation with the consent of the other spouse, or after two years without their consent. Unlike in England, it is possible to apply for divorce within the first year of marriage. This seems a slightly more sensible approach, and is probably testament to Scots law having been reviewed more recently than in England where we still labour under the 1973 legislation.
As you may be aware, in Scotland financial arrangements on divorce are more circumscribed than in England with less room for judicial discretion. North of the border, a couple’s matrimonial property is valued as at the date they separated (which is either when they stopped living together or on the date of the divorce summons) and then divided in accordance with the principles of legislation.
Matrimonial property includes anything acquired during the marriage before separation, and the family home and its contents whenever acquired. Other property acquired before the marriage or after the couple separate is excluded from division, as are gifts or inheritance from a third party, provided the property remains in the same form and is not mingled with family property. This is similar to English law, however Scots law is much clearer that inherited assets which are not converted into matrimonial property, and post separation assets, cannot be taken into account.
Five principles apply to dividing assets under Scots law. Those are:
- matrimonial property should be shared fairly (this echoes the English approach, but note that non-matrimonial property is not shared, whereas sometimes it can be under English law), and generally a fair share is an equal one;
- the economic advantage or disadvantage of either party arising out of their contributions to the family must be accounted for (this is similar to the English position);
- the financial burden of childcare should be shared fairly;
- spousal maintenance can be paid for up to 3 years (this is very different from the English situation where it can be paid, potentially, for life);
- provision can be made to prevent a spouse suffering financial hardship as a result of the divorce, and this can occasionally be used to argue for maintenance for longer than three years.
The Scots courts only award maintenance (known as “periodical allowance”) if fair sharing cannot be achieved by dividing capital, whereas the approach has developed in England of considering one party’s earning capacity to be a marital asset to be shared. These differing approaches can lead to very different results for, generally, wives who can be left without on-going financial support under the Scottish system. Further, it is unusual for there to be anything more extreme than a 60/40 split of the capital assets even with the less generous approach to maintenance.
The procedure is also very different, with no requirement to complete a financial disclosure form (the Form E), and no equivalent of the Financial Dispute Resolution hearing – if no agreement is reached, the case goes straight to a final hearing.
The Scottish system is more predictable and carries far less opportunity for judicial flexibility than the system operating in England and Wales. A further difference is that parties can contract a binding settlement between themselves without the need for court approval – in England, to be fully enforceable, all agreements about finance or property on divorce must be ratified by the court.
Naturally the Scots system can only be used by those with a jurisdictional claim to start proceedings in the Scottish courts, and this is something on which advice needs to be taken, but revolves around the last place of marital residence. If you would like more information, do get in touch with us on 01223 443333.