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Family law across the border

The family law system in Scotland is quite different from that in England and Wales. For a couple who divide their time between the two countries, choosing the correct jurisdiction is vital.

Divorce law in Scotland is often regarded by English lawyers as being unfair to the less well-off spouse by:

  • Limiting the payment of maintenance to a maximum of three years (except in exceptional circumstances); and
  • Excluding many assets from the marital "pot" that would have been included in England.

Scottish counterparts would argue the Scottish system delivers more certainty and a clean break, allowing a couple to move on, separately. This article aims to give a brief overview of the divorce law system in Scotland and to consider the benefits and difficulties of each of them.

Procedure

Scots law differs from English law procedurally in many ways:

  • There is no concept of Decree Nisi and Decree Absolute in Scotland (and consequently no gap between the two). Once Scottish proceedings begin, the decree of divorce cannot usually be granted until the financial issues and issues relating to the children have been resolved.
  • In Scotland there is no need to lodge an application for financial provision separately - in Scots law this is included within the Initial Writ or Summons (equivalent of the English petition). The paperwork is thus simplified and condensed.
  • The Scottish system does not require the parties to complete the equivalent of the English Form E (a summary of each party's assets and income). Instead, there is just a general requirement on parties to make full disclosure. There is talk north of the border about bringing in something similar to Form E, to make it easier for financial information to be collated, without the need to ask the court to compel disclosure by a recalcitrant litigant.
  • In Scotland, where the court is not used to determine the financial or child-related issues, a Separation Agreement sets out what parties have agreed. Parties still need to use the court process to divorce, but there is no need to ask the court to ratify the Separation Agreement.

Matrimonial property

Much has been made in England of the fact that pre-marital or inherited assets or gifts from third parties are excluded from the assets up for distribution under Scots law. Under the Scottish system, marital assets are (for the purposes of a division on separation or divorce) restricted to those acquired during the marriage, or before the marriage for use as furnishings for the family home.

Conversely, in England, cases such as Robson v Robson [2010] EWCA Civ 1171 have demonstrated the court's willingness to take a wider spread of assets into account. Recent cases such as N v F [2011] EWHC 586 Fam could be said to hint at a change in the English court's approach to pre-marital assets. In this case, although Mostyn J stated that the first step in such proceedings was to "decide whether the existence of pre-marital property should be reflected at all", the amount of pre-marital assets was considered by the judge to be £1m and this was consequently excluded from the matrimonial pot.

The other view, however, is that rather than demonstrating a shift in approach, this decision simply highlights the highly discretionary nature of the English system. The competing views of the judiciary and the wide margins of the court's discretion mean that the approach a court will take may vary immensely, making it very difficult to predict the outcome from case to case.

Conversely, it has been argued that Scots law is unfair in its exclusion of pre-marital, inherited or gifted assets. That said, there is scope for discretion within the Scottish system, where for example pre-marital funds are used to purchase the family home, or an inherited or gifted asset is used to purchase an asset during the marriage.

Maintenance payments

Although the principle of a clean break is stated as desirable, decisions such as those in McFarlane v McFarlane [2009] EWHC 891 (Fam) have shown that the English courts are not bound to apply that principle. In McFarlane, the court took the view that there was not enough capital for distribution and periodical payments were therefore ordered for the benefit of the wife. Mrs McFarlane was even able to return to court when the husband's income had increased several years later and obtain an upwards variation.

Scotland differs from the English system in that where spousal support is appropriate, it is generally only ordered for up to three years following divorce. Its purpose is to allow a party to adjust to the loss of support. So, the payments can be ordered to decrease over time, on the assumption the party will be finding their own financial feet. In Scotland, support can only be paid for more than three years if a party can establish "serious financial hardship as a result of the divorce". Such payments would be for a "reasonable period". This has, however, been construed narrowly by the courts and should not be interpreted as necessarily meaning indefinite payments.

Marital agreements

One of the major incentives for parties to enter into a pre-nuptial agreement prior to marriage or a post nuptial during the marriage is to achieve greater certainty of outcome if parties separate. Pre-nuptial agreements are not legally binding in England. However, English family lawyers have, following the case of Radmacher v Granatino [2010] UKSC 42, experienced an increase in the number of instructions for new pre-nuptial agreements to be drafted. In Scotland, there is a long history of pre-nuptial agreements. It is not possible to guarantee that a Scottish pre-nuptial will be upheld, but the starting point north of the border is that if it is a valid contract, then it is binding on parties unless successfully challenged on divorce. Proper advice and careful drafting are critical in both jurisdictions.

Conclusion

Case law is always changing and evolving, both north and south of the border. As family lawyers, all we can do is advise on the current legal position, and where clients are entering into pre or post nuptial agreements, advise them to review the provisions every few years, to make sure they properly reflect parties' intentions. The English system has an emphasis on flexibility and discretion. The Scottish system has more of an emphasis on a clean break. The starting point there is that claims should be restricted to what has been generated by the income and efforts of the parties during the marriage.

Every case turns on its own circumstances, both in England and in Scotland. However, keeping up to date with current case law in our own jurisdiction, and having an awareness of the legal position both north and south of the border will help us identify the best way forward for our clients.

This article first appeared in the Law Society's Gazette - June 2011 and was written by Harriet Errington, a Solicitor in the Family team

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