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Is Divorce Law The Same In Scotland And England?

Although England, Wales, Northern Ireland & Scotland are all part of the UK, Scotland has its own distinct judicial system and its own jurisdiction. Consequently, it’s important to be aware of the differences, especially if you plan to file for divorce.

First and foremost, a couple living in England or Wales can only be divorced under English Law. In Scotland, the same rule applies where a couple living in Scotland can be divorced under Scottish law.

Usually, most people who reside in Scotland will be able to get a divorce in Scotland, under Scottish law. However, you can only get a divorce in Scotland if you meet the residency rules about where you live.

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    Scottish Divorce Residency Rules

    To get a divorce or the dissolution of a civil partnership in Scotland, under Scottish law, you need to be able to say that:

    Either you or your spouse/civil partner are domiciled in Scotland when the application is made.

    and/or

    You or your spouse/civil partner are habitually resident in Scotland, having resided there for at least one year immediately before making the application.

    Additionally if you are applying for a simplified divorce/dissolution in the Sheriff Court one of the following criteria must also apply:

    Either you or your spouse/civil partner have lived at your current address for at least 40 days before the date the application is made.

    and/or

    You or your spouse / civil partner have no known residence in Scotland but did live at the address shown for at least 40 days, ending not more than 40 days before the date the application is made.

    Domiciled in Scotland

    It should be noted that the status of Domicile is a ‘state of mind’ rather than an issue of residence and essentially means that you intend to reside in Scotland permanently. There is no time requirement as to how long you should be in Scotland before you acquire domicile.

    Resident in Scotland

    The residence requirement means you must have resided in Scotland for one year prior to starting the divorce.

    If raising the application using the Sheriff Court rather than the Court of Session (most divorces are done in the Sheriff Court) then you require to have lived within the area of a particular Sheriff Court for 40 days immediately before you raise the divorce.

    Where should the divorce proceedings be petitioned?

    How do you decide where divorce proceedings should be petitioned? 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.

    However, people do move around the UK for all sorts of reasons, and this is where the divorce laws become somewhat of a grey area.

    Where a couple has lived in both England and Scotland, and/or have a residence in both countries can become a matter of interpretation. If you are a couple who have perhaps divided your residence between Scotland and England, or one spouse has moved from one country to another this could be of vital importance.

    For example, there are many spouses who reside in Scotland with their partner but spend the working week living in England. If these marriages break down it is possible that divorce could be brought under either jurisdiction.

    It is, of course, possible that a court in England and a court in Scotland could each have jurisdiction if one spouse lives in England and the other lives in Scotland. Generally, it can be first past the post for establishing which court will deal with a divorce i.e., who raises the divorce first and where.

    In Scotland, a divorce is deemed to have started once the divorce papers have been served. There are sometimes complex reasons why a court might decide that, even though a divorce has been raised in one jurisdiction, it may be appropriate to remit the case to the court in the other jurisdiction.

    Period of Separation

    Is it possible to be divorced sooner in Scotland than in England & Wales? In England & Wales, provided you have been married for at least one year, the periods for divorce based on the length of separation are two years with consent and five years without consent.

    In Scotland however, following a change to the law in 2006, it is possible to divorce after just one year of living apart, provided the other spouse agrees.

    There are also two grounds of divorce in Scotland that can be used when the other spouse does not consent. These are adultery or unreasonable behavior. If either of these applies and the other spouse will not consent after one year’s separation, then these fault-based grounds could be used.

    If neither of these grounds applies, then a divorce can be sought after two years of separation without consent.

    As a result, it is possible to be divorced sooner in Scotland than in England & Wales.

    This is one area where the difference between Scottish & English divorce law can have far-reaching consequences, and some of the other principal variations are set out below.

    Financial Provision Upon Divorce

    As we have established, the law on divorce in Scotland is quite different from the law on divorce in England and Wales. In fact, not just the law, but also the procedure is actually very different, particularly when it comes to financial provision upon divorce.

    Scottish laws regulating financial provision upon divorce vary from those in England. This difference has little impact on the eventual outcome in most cases, however, in some circumstances, the financial outcomes will be substantially different.

    The Scottish Clean Break Principle

    Scotland is often viewed as being more financially stringent when it comes to making provision for a less well-off spouse.

    The law in Scotland seeks to ensure a “clean break” divorce whereby couples are no longer financially tied to one another. Whereas in England and Wales couples can find themselves financially tied to one-another many years after the divorce.

    One very significant difference in Scotland, based on the clean break principle, is that any claims available to either spouse must be made prior to the divorce being granted.

    This may be a negotiated settlement or decided by the Court. Either way, once the divorce has been granted, neither spouse can seek further claims in the future.

    However, there is a seldom-used provision that the court can be asked to grant a divorce but set a future date by which financial claims can be made, but again, once these claims have been resolved no future claims can be made.

    The clean break principle also means that maintenance payments or periodical allowance as it is referred to in Scotland, from one spouse to another are usually restricted to a maximum of three years.

    Consequently, whether the divorce is petitioned in Scotland or England may have a significant financial impact on the amount awarded and the period over which it will be paid.

    It should also be noted that in Scotland, maintenance applications can be raised separately to a petition for divorce. Furthermore, such applications do not require to be raised where a married couple last resided together. They can instead be raised in a court where the applying spouse is habitually resident.

    In summary, if there is likely a substantial difference in the financial package a spouse would receive between family law courts in England or Scotland there needs to be a thorough understanding of how the rules of jurisdiction work.

    If potentially one jurisdiction is to be of advantage for one spouse, what steps should be taken to ensure the advantage is achieved.

    Alternatively, if there could be a disadvantage for one spouse, how is jurisdiction established in a more favourable part of the UK?

    Separation of Matrimonial Property Financial Provision Upon Divorce

    Additionally, there can be assets, such as premarital savings, gifts, or inheritances which are often excluded from the matrimonial pot when it comes to recognising matrimonial property in Scotland. This is not necessarily the case in England & Wales.

    Cohabitation Rights Under Scottish Law Compared to English Law

    Under Scottish Law, the rules of jurisdiction for cohabitants’ rights are much the same as those for divorce. Therefore, a claim can be made for cohabitants’ rights if a period of six months of habitual residence in Scotland can be established.

    In England, there are no such cohabitants’ rights, which means that unmarried former partners have fewer rights to financial security than their counterparts in Scotland.

    Divorce in Scotland

    Having determined that you qualify to apply for a divorce or the dissolution of a civil partnership in Scotland what options are available to you?
    There are two types of divorce procedures that can be used in Scotland. These are known as the Simplified Scottish Divorce (Do-it-Yourself Divorce) and the Ordinary Scottish Divorce (Non-Simplified Divorce).

    Either type of divorce application can be raised in the Sheriff Court or Court of Session in Scotland and the fees charged will vary depending on where you raise the claim.

    Generally, if your application is a relatively straightforward case and falls below the threshold of £100,000 it will be quicker and cheaper to use the Sheriff’s Court. For more complex cases, and cases where a large amount of money is being claimed you will probably need to use the Court of Session.

    To find out which divorce procedure best suits your circumstances and which options are available read Facts About Scottish Divorce.

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    So, as you can see, there are several important differences between Scottish & English Divorce Law. This article provides a brief overview of those differences which is general in nature and does not intend to be definitive. As there may be situations where the general position may not apply we do strongly recommend that you seek professional advice.

    If you need more information about our Scottish Divorce Services, or your individual circumstances, please get in touch with us for free friendly advice.

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