Whatever the political relationship between Scotland and the rest of the UK, one element that was sacrosanct with the introduction of the union in 1707 was the continued independence of Scotland’s legal system. This difference has been maintained and manifests itself in various ways, with one of the most striking instances seen in the divergence of family law.

On either side of the border, when people separate there are two key considerations: what happens to children, and what happens to assets. In both areas, Scots law differs widely from that of England and Wales.

Taking the issue of children first, one of the main differences is in how requests to move abroad are treated in the two jurisdictions. Across the UK, the overriding consideration is the welfare of the children. In England however, more emphasis is generally given to the position of the primary carer. If that person wishes to move abroad with the children, perhaps to move back to their home country where they have extended family, consideration will be given to this request, even if it is challenged by the other parent. In Scotland, greater emphasis is placed on avoiding disruption to children, and a higher bar is applied so that if one parent challenges a move, permission is less likely to be given.

In financial terms, English law tends to be more generous to a dependent partner, while Scottish law tends to be more hard-nosed when it comes to ongoing long-term support at the end of a marriage or civil partnership.

Specifically, in Scotland there is a statutory definition of “matrimonial property”, which simply doesn’t exist in English law. This provision has one simple aim – to delineate those assets that belong to the couple together and those assets that belong exclusively to the individuals involved. When marriages are dissolved under Scottish law, the matrimonial assets are the ones that are up for discussion when dividing up the property, while those assets deemed simply to belong to one person don’t go into the mix (the starting premise, before other considerations are taken into account, is that matrimonial property should be divided equally).

How is this delineation applied? Basically, any asset that a person has acquired before a marriage and any inherited or gifted assets that remain in the same form and are not intermingled with other matrimonial property can normally be judged to have remained as personal assets. Important to note is that by realising an initial asset and acquiring a new asset from those funds – for example, where a cash gift is given in advance of the marriage, but the gift is used to buy a holiday home during the marriage – what was initially just a personal asset now becomes matrimonial property.

The approach in England is markedly different. There, the court looks at the circumstances of each case individually, taking into account factors such as each party's overall position: how much each person is worth; the relative wealth and prospects of each individual, and how the couple intend to provide for the children going forward. The bottom line is that unlike the rather prescriptive Scottish system, in England and Wales the court has much wider discretion in what kind of settlement is imposed.

In contrast to many decisions from the English Courts where long term awards of support are often made (and can in certain circumstances be pursued long after the marriage has ended – see the recent the recent decision by the Supreme Court in London, allowing Kathleen Wyatt to claim from her wealthy husband Dale Vince, even though they had separated in the 1980s, before he made his fortune) this simply wouldn't happen in Scotland. In as much as there is a philosophy that can be deduced from this varying treatment of dependent spouses it seems that, under Scottish law, the marriage ends at the date of separation whereas, under English law, while your marriage or civil partnership may be dissolved, your obligation to your former partner can continue almost indefinitely. If there is one key result from these differences, it is that the Scottish approach is much easier to predict, with parsimony perhaps being the price to be paid for certainty.

A final key differentiator between Scotland and the rest of the UK is in the treatment of cohabitees. In Scotland, people leaving relationships where they have lived together but are neither married nor in a civil partnership can make financial claim  against their former partner (within one year of separation) if they can prove they have suffered economic disadvantage in the interests of their partner or any children of the relationship.

In England and Wales there exists no such statutory provision for a partner outside of marriage or civil partnership. The only claim they can make is in relation to any children from that relationship. What this means in practice is that the primary carer may be provided with the use of a house and support to look after the children during their childhood. When the children come of age, however, the support and the right to occupy any property will generally cease.

Which system is better? That, of course, depends on the viewpoint of who is benefiting or losing out from each particular system. What cannot be ignored is that there are public policy considerations in relation to family law. We should consider whether it makes sense to have a tightly defined financial provision (ancillary relief) regime that can leave one partner so significantly out-of-pocket that they may have to seek benefits from the state, when the other partner still has considerable wealth at their disposal.  Likewise does it do anyone any favours for London to be known as the divorce capital of the world and for would be divorcees to flock to the capital seeking substantially more generous awards than they could expect to receive almost anywhere else, often including in their home countries.  Should forum shopping for divorce be encouraged in any way? Is it equitable that many years after a marriage has ended a former spouse can lay claim to a share of wealth acquired post-divorce?

While the variance between the two codes may not be enough of a consideration to determine where people want to live, there is no doubt that where you end your relationship in the UK can have a significant material impact on the wealth of both parties.

If you would like any more information please contact a member of the Divorce and Family Law Team, who can advise on all aspects of family law.

We’re always happy to discuss things further.
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