The grounds for divorce in Scotland differ from those in England. In Scotland, the grounds for divorce are:

  • Unreasonable behaviour
  • Adultery
  • One year’s separation with consent
  • Two years’ separation without the requirement of the other party’s consent

In Scotland, you must be able to provide evidence of the ground you rely on. This is different from the position in England and Wales. There, once a declaration is made that the marriage or civil partnership has irretrievably broken down, the divorce cannot be opposed.

Financial provision

The starting point, and in most cases the end point, will be equal sharing of matrimonial property. Matrimonial property is all property acquired during the marriage. Specifically excluded from this definition is property owned before the marriage, or property acquired by way of gift or inheritance. If the property changes in nature during the marriage it is likely to be converted from non-matrimonial property into matrimonial property. Tax planning exercises can often result in the conversion of non-matrimonial property into matrimonial property. This brings that property into the matrimonial pot to be shared in the event of a divorce. Often the effect will be that the sums saved in tax will be dwarfed by the value of the additional property that will then have to be shared on divorce.

The law allows the Court to take account of special circumstances, and other factors such as any economic disadvantage suffered by one spouse for the sake of the marriage, or the need to provide a house for the children of the marriage. The reality however is that the majority of cases are disposed of on the basis of equal sharing of matrimonial property and if any account is taken of any of the other circumstances, the uplift is unlikely to be substantial.

Maintenance

Scots Law is not generous with spousal maintenance. In theory, when a divorcing spouse or partner needs time to get back into the job market, they are entitled to maintenance for a period of up to three years post-divorce. The reality is that in the vast majority of cases the divorced spouse/partner can expect very little, if anything, by way of maintenance post-divorce.

In cases where the divorcing spouse/partner cannot work because of age or infirmity, the law will take account of this and they can realistically expect long term maintenance.

The fact that a divorcing spouse/partner has a difficulty in obtaining proper full time employment because they have young children to look after does not in itself guarantee long term maintenance.

A will?

A Scottish divorce does not invalidate a will. Separating and divorcing clients should be aware of the importance of changing their existing will.

Scots Law -v- English Law

The law on financial provision in England is based on very different principles from the law of Scotland. In many cases the final outcome can be very similar. However, in certain cases the difference between Scots law and English law can be considerable. The greatest difference we have seen in an award between Scots law and English law was £8 million.

As a rough rule of thumb, clients who have substantial inherited or pre-marital assets will be better off divorcing in Scotland. Clients who require maintenance may be better off in England.

The luxury of a choice of litigating in either jurisdiction will not be available to all. However, there are many families with either holiday homes in the other country, or where one of the spouses works for part of the week in the other country. Clients in these circumstances who have concerns about the future of the marriage should seek the earliest possible advice from an English family lawyer and a Scottish family lawyer.

Pre and post nuptial agreements

Scots Law recognises pre and post nuptial agreements. They require to satisfy various criteria to stand up to the challenge. The main criteria are:

  • That the agreement was fair and reasonable at the time it was entered into
  • That the other spouse or spouse to be had the opportunity of legal advice before signing
  • That there was no pressure to sign

Cohabitants’ rights

In Scotland, cohabitants now have limited statutory rights. In certain circumstances, cohabitants have the right to make claims for financial provision in the event of separation. The court can make an order for payment of a capital sum –

  • To compensate for economic disadvantage suffered in the interests of a partner or the family
  • To reflect the additional burden of caring for any children after separation

In the event of death of a partner, cohabitants may have the right to claim a share in their deceased partner’s estate, but upon intestacy only. The cohabitants rights apply to both heterosexual and homosexual cohabiting couples.

Cohabitation agreements

Cohabitation agreements will be respected by the Scottish courts, much in the same way as Pre and Post Nuptial Agreements are, provided that the necessary formalities have been complied with.

Information kindly supplied by Brodies LLP.

Brookman are specialist international divorce lawyers and family solicitors and we have advised numerous clients who now reside in England but originate from Scotland, or are living in Scotland but have a connection with England or Wales.

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Henry Brookman Discusses: Divorce
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We are a specialist divorce and international divorce family law team, advising clients in the United Kingdom (specifically England and Wales) and throughout the world. We have a very people–orientated approach to working with clients. Henry Brookman has practised law for over 45 years, and our team has a wide range of skills and expertise. We are recommended by the Legal 500 and have been awarded the Law Society’s quality mark, Lexcel.

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Philip Morton

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