Whilst not every family will have a choice of jurisdiction, some couples may be eligible to issue divorce proceedings in either Scotland or England and Wales. Where that choice exists, the decision can have significant legal and financial consequences. Divorce is stressful enough for clients, but add in the complexity of jurisdiction and matters can become overwhelming without informed professional guidance.
Below are a few key points for consideration that may assist family solicitors when advising on cross border issues.
Will the client be able to apply for divorce on a no fault basis?
In an effort to make the divorce process less confrontational, England and Wales introduced no fault divorce in 2022. Prior to this, a party wishing to divorce immediately had to rely on grounds such as unreasonable behaviour or adultery. Failing that, they needed to wait for two years and even then only with the consent of their spouse. This often forced couples in amicable situations to cite blame, which unnecessarily increased tensions. Following the reforms, the parties can simply confirm that the marriage has broken down without assigning blame, ensuring the process does not begin on an acrimonious foot.
Scotland has a system more similar to the previous English model, except parties must be separated for one year before seeking divorce with consent, and two years without it. There have been discussions about potentially bringing the Scottish system in line with the updated English approach and removing the need to cite a reason, but this has not yet been introduced.
It is also worth noting that both jurisdictions impose residency or domicile requirements which must be satisfied before proceedings may be raised. England in particular had a reputation as the “Divorce Capital” of the world, prompting legislative measures to reduce forum shopping. This area of law can be technical, so where eligibility is unclear it is worth reviewing the relevant rules in detail with the client.
How can a client fund litigation if they do not have access to money?
Divorce proceedings can be costly and not every client will have access to their own funds to meet fees. In Scotland, there is no option to secure funding via the court. A litigant with no access to personal funds will likely have to rely on commercial borrowing or loans from family or friends.
Unlike in Scotland, the financially weaker spouse in England and Wales can apply to the court for an order requiring their spouse to provide enough money to cover reasonable legal fees where agreement cannot be reached. Litigation loans are also available, although these often come with high interest rates which many clients find prohibitive.
What if the client’s financial position has improved after separating from their spouse?
It is not uncommon for couples to wait months or even years after separating before deciding to commence divorce proceedings. During that time, one party’s financial position may improve significantly.
In England and Wales, the court generally seeks to limit asset sharing to wealth accumulated during the marriage, but it has discretion to include assets accrued before the marriage or after separation if necessary to meet needs and achieve a fair outcome.
Scotland takes a different approach, as the court will generally consider the parties’ financial positions as they were at the date of separation, with assets accrued after that point usually excluded. This can give parties greater certainty about potential outcomes but may disadvantage someone whose spouse has acquired considerable assets since the end of the marriage.
How MFMac can help
At MFMac, our family law team advises on both Scots law and English law, ensuring clients receive informed, jurisdiction specific guidance from the outset. We routinely support family lawyers and their clients in cases where the choice of forum may affect strategy, financial outcomes, or the overall timetable. Whether the matter proceeds in Scotland or England and Wales, our cross border experience allows us to provide clear, commercially focused advice and to work seamlessly alongside other lawyers to secure the best possible position for the client.
