Insights

Divorce: A Look over Our Northern Border


17/12/2012

Few people realise the differences between the English and Scottish legal systems and, when it comes to relationship breakdown, those differences can be striking.

Divorce Procedure

Until recently, the basis for divorce in Scotland was identical to that in England and Wales, but in 2006 new legislation introduced a simplified divorce procedure and the process can now take under a month from start to finish.

Importantly, under Scottish law, once a divorce has been granted a party cannot seek financial provision. Therefore, it is essential for the Respondent to a divorce to act quickly and notify the court if they intend to make a financial claim. This must be done within twenty one days of being served with the divorce papers. If this is not done, the financial claims will fall away once the decree is final. In contrast, in England and Wales, an application for financial provision may be made after the divorce. This could be many years later, although a party will be unable to apply if he or she has subsequently remarried.

Financial Provision on Divorce

On divorce, the Courts in England and Wales have a wide discretion to make financial orders and must take into account the various factors set out in Section 25 of the Matrimonial Causes Act 1973. As a general ‘catch-all’ provision, the courts are required to, “have regard to all the circumstances of the case, with first consideration being given to the welfare of a minor or any child of the family who has not attained the age of 18.”

Over the last decade there has been a trend towards achieving ‘fairness’ on divorce and, if appropriate, an equal division of the assets between the parties. The English Courts make a distinction between matrimonial (assets acquired during the marriage) and non-matrimonial (assets brought into the marriage or received by inheritance or gift) property. While the existence of inherited or pre-acquired assets may justify a departure from equal division, those assets cannot be ring-fenced altogether. If the ‘needs’ of the parties cannot be met out of the matrimonial assets, the English Courts will often invade the non-matrimonial assets in order to meet those needs.

In Scotland, financial provision on divorce is very different and there is a detailed and prescriptive regime in which ‘needs’ are hardly considered. The aim of the Scottish legislation is to achieve a ‘fair’ sharing of matrimonial assets. ‘Matrimonial assets’ are defined as being, “all the property belonging to the parties or either of them at the relevant date, which was acquired by them (other than by gift or succession from a third party) either during the marriage or ( in the case of the family home and its contents), in contemplation of the marriage.”

The ‘relevant date’ is the earlier of:
(a) the date upon which the parties cease to co-habit;
(b) the date of service of the summons and the action of divorce.
This is when a ‘snapshot’ of the parties’ finances is taken. In contrast, in England and Wales, the court will look at the value of the assets at the time the matter comes before it.

Subject to a few exceptions, the following property is excluded from ‘the pot’:
• assets acquired post-separation;
• assets acquired pre-marriage;
• assets acquired by gift or inheritance from a third party.

A ‘fair’ division of the matrimonial assets has been interpreted by the Scottish courts as meaning ‘equal’ unless there is a strong and compelling argument to justify an unequal but fair split.

Spousal Maintenance post-Divorce

Under Scottish law, there is a strong emphasis on achieving a financial clean break. The courts in England and Wales are also required to consider a clean break between the parties but will often award ongoing spousal maintenance post divorce. In contrast, spousal maintenance in Scotland is limited to a maximum period of three years after divorce irrespective of ‘need’. This is a very significant difference.

Conclusion

From an English family lawyer’s perspective, the Scottish system appears to be unduly prescriptive and rather parsimonious, but it does achieve a more predictable outcome, and this predictability is desirable as it should enable the parties to negotiate a settlement without the costs of protracted and risky litigation.

However, the flexibility of the English system enables bespoke awards to be made depending on the circumstances of each case. A ‘one size fits all’ approach may result in unfairness and hardship in many cases.

Gordon Dadds