St Andrews Day is today and whilst it has got us feeling somewhat patriotic, it has also got us thinking about the differences between Scotland and England & Wales. One such difference is the starkly contrasting legal systems that are at play, particularly when it comes to Family Law.
A more and more common issue for individuals facing separation is whether they should seek to divorce under Scots Law or English Law. This is becoming a more prevalent topic for conversation as couples now, more than ever, either split their time between Scotland and England, or move from one country to another.
Divorce in Scotland vs England and Wales
So, why is it something that a separating spouse needs to consider? Surely the law on divorce in Scotland can’t be that different to the law on divorce in England and Wales? Well, in fact, both the law and the procedure is actually very different, particularly when it comes to financial provision on divorce.
Scotland is in fact often viewed as being financial “tighter” or “meaner” when it comes to making provision for the financially less well-off spouse. The law in Scotland is keen to ensure a “clean break” divorce whereby couples are no longer financially tied to one another.
Clean break principle
This clean break principle has meant that any maintenance payments from one spouse to another are restricted (except where they are exceptional circumstances) to a maximum of three years. This is not the case in England and Wales, where couples can find themselves financially tied to one-another well past the date of divorce. Additionally, there are many assets (such as premarital assets, gifts or inheritances) which are excluded from the matrimonial pot when it comes to identifying matrimonial property in Scotland. This is not necessarily the case in England.
Consider your options
So, if you are contemplating separation, or have indeed already separated, what should you be thinking about? As always, it is incredibly important to meet with a family solicitor and get advice as soon as you can so that you know what options are available to you, and indeed what options your spouse may be contemplating and what impact these may have on you. If you are a couple who have perhaps split your time between Scotland and England, or one spouse has now moved from one country to another, then it is imperative that you obtain advice as quickly as possible.
Where are divorce proceedings to be raised?
So, generally, how do we determine where divorce proceedings are raised? Well, the Domicile and Matrimonial Proceedings Act 1973 states that divorce should be dealt with by the court where the parties last lived together as husband and wife. For most couples that will be clear, but where couples have lived in both places, and/or have homes in both places, this could be a matter of interpretation, and so it is even more important to take legal advice as quickly as possible.
Not only are there the divorce proceedings (and the separation of matrimonial property) to consider, there is also the matter of “maintenance” or, as it is known in Scotland, periodical allowance. As mentioned above, Scotland is viewed as being meaner when it comes to maintenance, and so whether the court is south or north of the border may have a significant impact on the amount awarded and the period over which it will be paid.
Villiers v Villiers
The recent case of Villiers v Villers has shown that such maintenance applications can be raised separately to an action for divorce. Such actions do not require to be raised where spouses last resided together as husband and wife, and instead can be raised in the court where the applying spouse is “habitually resident”.
In situations such as these, “habitual residence” means a residence, “which is being enjoyed voluntarily for the time being and with the settled intention that it should continue for some time”.
Room for interpretation
Again, there is room for interpretation here and whether or not a spouse is habitually resident and therefore able to make such a maintenance application will depend of the specific circumstances of each case.
Clearly, if you think you are in such a situation, it is very important to get legal advice as quickly as possible, and is something that BTO can assist you with. Contact us to discuss divorce in Scotland or any other jurisdiction.