The key differences between obtaining a divorce in Scotland vs England and Wales

Where a married couple has links to multiple UK jurisdictions, there can often be ambiguity about which jurisdiction can, or indeed should, deal with their divorce.

This can be further complicated by the location of the property and assets, or in the event that one or both spouses move across the border post-separation. Contrary to the common misconception that you must divorce in the jurisdiction in which you married, there can be circumstances where it is competent to raise proceedings in multiple jurisdictions. The deciding factor about which court "wins" depends upon the countries involved.

Some couples may not be aware that the courts in each respective jurisdiction have considerably different divorce procedure, and that financial outcomes may differ substantially.

This blog is intended to give a high-level overview of some of the key differences between divorce proceedings in Scotland, England and Wales, noting that there are many other differences which this blog does not cover.

Although the language used in this blog is restricted to divorce/spouses, the principles of law apply equally to the dissolution of a civil partnership except where flagged.

Grounds for divorce

In both jurisdictions, the sole ground for divorce is the irretrievable breakdown of the marriage. However, each jurisdiction now has markedly different requirements for proving this.

Since the Divorce, Dissolution and Separation Act 2020 came into force on 6 April 2022, the notion of "fault" has been removed from divorce in England and Wales. There is no need to provide evidence to the court to demonstrate the breakdown of the marriage. Simply stating that the marriage has broken down irretrievably is sufficient as a ground for divorce.

This is now in stark contrast to Scotland, where certain circumstances must still be proved to the court in order for a divorce to be granted. If these are the so-called "fault" grounds (adultery or unreasonable behaviour), evidence must be led to prove same. This can be an invasive process for all parties involved and can add to time and expense of proceedings. Adultery is also not a ground for the dissolution of a civil partnership.  It is no surprise that the majority of divorces in Scotland are instead brought under the two non-cohabitation grounds, being one-year non-cohabitation with consent, or two-years cohabitation, in which case no consent is needed from the other spouse.

Procedural differences of divorce in UK jurisdictions

The Scottish and English courts use a different procedure to deal with divorces. While this may seem administrative, it may have a significant bearing on both what is required of you in the process, the length of time of any proceedings and the eventual outcome. It is possible to petition to the court jointly for a divorce in England and Wales, whereas in Scotland the application must be made by only one spouse.

In Scotland, it is possible to contest your spouse's application for divorce. This has been impossible (except on the grounds of jurisdiction and other exceptional legal circumstances) in England and Wales since the Divorce, Dissolution and Separation Act 2020 came into force on 6 April 2022.

Timelines and "Clean Break"

In Scotland financial provision is dealt with concurrently with the divorce being granted and cannot readily be revisited afterwards, unlike in England and Wales. The Scottish "decree" (granting) of divorce is connected to the resolution on financial provision. It is therefore vitally important to ensure that you have achieved adequate financial settlement before decree of divorce is granted.

Financial matters in England and Wales by contrast are separate from the divorce itself. Therefore, even if a final Divorce order is granted, either party can make a financial application to the Court and seek financial orders relating to the marriage. Until all financial claims are dismissed, a claim can be made years after the final divorce.

While both jurisdictions seek to apply a "clean break",  the Scottish courts are known for following this philosophy much more industriously. There is a reluctance to impose ongoing maintenance. Periodical allowance paid from one party to another continues for a maximum of three years post-divorce and is generally intended more as an "adjustment" payment rather than provision of ongoing income.

In contrast the English court routinely considers spousal maintenance claims over 3 years where the circumstances of the case require such an order to be made to achieve fairness, especially where relationship generated needs exist. However, the overall objective is the transition to financial independence of the spouse as soon as possible.

Needs vs equal sharing in the division of matrimonial property

The key concept when it comes to division of the matrimonial property in Scotland is "fair sharing". This usually means equal sharing of assets acquired during marriage (with certain exceptions) between spouses unless certain special circumstances can be shown that merit an unequal split. The Scottish system is therefore relatively prescribed, with a clear legislative framework for how assets should be divided. It can be said that this framework gives couples more confidence to negotiate their own financial settlement, as there is perhaps a greater degree of predictability in what the Scottish courts may order.

The courts in England and Wales on the other hand can adopt a more paternalist view that is based on needs of the parties, although the sharing principle is a fundamental element of English law. The starting point is equal sharing, but if the parties' needs cannot be met through the equal division of the assets acquired during marriage, an unequal division can be ordered. Further, where needs are established, the pre-and post-marital assets can be invaded to meet those needs. This may even extend to post separation assets and inheritances if received by a party, resulting in a potentially more generous settlement for the financially weaker spouse. The broad discretion afforded to the English courts may draw spouses to litigate more often as the potential reward (but therefore also risk and cost) is higher.

How Morton Fraser MacRoberts can assist with your divorce

A breakdown of a relationship is a tumultuous time, and potential issues of jurisdiction can add to this uncertainty. If you are unsure which part of the UK has jurisdiction in your circumstances, it is important to take early advice from a solicitor to secure your advantage. Morton Fraser MacRoberts' Family Law team has dual-qualified experts who can advise you on your specific circumstances. Instances where you have perhaps been served with English divorce papers while living in Scotland (or vice versa) require timeous, joined-up advice. Whether to contest a divorce application in England on the grounds of jurisdiction is a decision that is worth considering based on advice from an experienced dual qualified solicitor.

Savita Sharma is a Family Law expert based in our Edinburgh office and can advise both in person and remotely/by hybrid means. Dual qualified with a strong English family practice, she can advise on all intra-UK jurisdiction family law issues. She can provide clients based in Scotland with pure English advice also, while keeping a tactical awareness of the interplay between the jurisdictions at the forefront of your case.

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