Many people don’t realise that divorcing in Scotland is not the same process or same legal system as divorcing in England or Wales. And as The Scotsman newspaper pointed out recently, further complications can occur when there is a crossover between the Scottish and English legal systems so it’s worth knowing how the two differ.

The first thing to be aware of is the amount of time it takes for a divorce to be granted in Scotland, as opposed to south of the border. In England and Wales, divorce is a two-stage process (decree and absolute), in Scotland this is reduced to a one-stage decree, which can be granted after one year’s separation with consent by both parties, or two years without consent (compared to two or five years respectively in England and Wales).

English law is more pre-disposed to allow both spouses to share wealth and income even after a divorce, in the form of long-term maintenance which can sometimes last a many years and include the sharing of inheritance. This agreement however, is usually restricted to three years maximum in Scotland. The division of matrimonial property (defined in Scotland as any home bought as a couple before separation or before marriage if purchased to be the family home) is automatically assigned equal division. South of the border though, this division is not so clear cut and many factors come into play, including the length of the marriage and the welfare of the children.

Financial claims are settled on the production of the divorce decree in Scotland, allowing couples to make a completely clean break and start over again. In England however, such claims and settlements may not be dealt with until after the decree absolute has been finalised. Sometimes, this may even be many years down the line.

Pricing varies widely, too. Court charges for filing for divorce in Scotland are £141, whereas further south, applicants are charged £410 – a figure which is shortly expected to rise significantly. Unfortunately, changes to legal aid in England means that only a handful of spouses can expect to receive funding to help with their divorce. Legal aid is still available for family cases in Scotland, however.

Perhaps most importantly, many people are not aware that they can choose to have spousal maintenance agreements heard by any relevant legal system. Whether a specific agreement is dealt with by a Scottish court or an English court could therefore make a significant difference to a maintenance agreement.

Read much more about divorce and family law in Scotland.

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