How is divorce in Scotland different from that in England and Wales?
Frequently lawyers are faced with the situation where a client’s case raises jurisdictional questions. The focus of this blog by Lindsey Ogilvie of Turcan Connell in Scotland and Jennifer Moore of Rayden Solicitors in England, is the jurisdictional issues that arise between Scotland and England. For a relatively small island the two legal systems have significant differences and it is important to be aware not only of those differences but in particular of the potential benefits to the client in each jurisdiction should there be scope to choose which jurisdiction in which to divorce.
3 Key Questions –
Will the process be quicker in England and Wales?
In Scotland the grounds for divorce differ to that in England. In Scotland you can divorce on the basis of having lived apart for a year (with the other party’s consent) or for two years (for which no consent is required), adultery, or the unreasonable behaviour of the other party which is a subjective test.
Commonly parties seek to reduce their costs and avoid the uncertainty of litigation by negotiating and agreeing settlement terms without stepping over the threshold of a Court. Assuming settlement terms can be agreed they are embodied in a document known as a Minute of Agreement or contract between the parties. That document can detail care arrangements for children, issues of child maintenance, spousal aliment (maintenance pending suit), capital division, school fees and so on, and importantly records that its terms are in full and final settlement of all financial claims that the parties can make against each other even on death. On signing that document the parties are free to divorce on whatever ground is available to them. The Court is not engaged at all as to whether the terms of that agreement are fair and reasonable – there is no ratification process, and the parties are free to agree whatever terms may suit them (subject to considerations of public policy).
One benefit of this system is that if there are no children under the age of 16, the parties can divorce using the simplified procedure which is a straight forward form-filling exercise with minimal cost.
If there are children under the age of 16 a full action of divorce is required, but the process is administrative and the Court simply requires to be informed by way of affidavit (deposition) evidence that the care arrangements for the children are satisfactory and that no financial claims are to be made.
Depending therefore upon the level of the parties’ cooperation and ability to agree terms they can remove entirely the Court’s ability to interfere with their financial/childcare arrangements.
England and Wales
In England there is one ground of divorce: the irretrievable breakdown of the marriage (or relationship in the case of dissolving a civil partnership). That petitioner can rely on one of five facts to prove irretrievable breakdown as follows: Two years’ separation and consent of both parties to the divorce (whereas Scotland is one year), five years’ separation and no consent, unreasonable behaviour, adultery or desertion.
The family law protocol provides a draft of the divorce petition should be sent to the respondent, prior to it being issued at Court. In most cases the divorce will be dealt with without the need for the parties to attend Court. The divorce suit is dealt with separately to financial claims, however, a divorce petition must be issued before any financial application can be brought.
The systems are similar in that most couples will look to minimise their legal costs and avoid the uncertainty of litigation by coming to an agreement as to the appropriate financial settlement. Frequently parties engage in mediation, collaborative law or voluntary negotiations between their respective solicitors and, now more commonly, in arbitration, in order to avoid going through the Court process. If agreement is reached, the parties sign Minutes of Consent, which are then converted into a final financial consent order. A key difference in the two systems, is that in England the Court has discretion whether or not to approve the Minutes of Consent. In practice it is very rare for the Court not to approve the Minutes of Consent on paper without hearing from either party, but it is not unheard of. In most cases however, where there is agreement, the parties’ entire case, i.e. their divorce and financial settlement, can be dealt with without the need to attend Court.
In England the Court does not become involved in respect of what the arrangements for the care of any children of the marriage will be upon divorce. The presumption is that the parties will agree the arrangements between themselves, and the Court is usually not informed of what the detail of those arrangements are. In contested financial remedy proceedings the Court will be informed of what the arrangements for the children are in so far as it is relevant for the Judge considering the appropriate division of the parties’ assets (for example, the Judge will need to know if the children of the marriage spend time overnight with both parents, because it is relevant to the assessment of the parties’ housing needs).
The Court will not, in any situation, make an order about the arrangements for the care of the parties’ children on determining a financial application or when granting a divorce. Proceedings concerning the arrangements for the care of the parties’ children are an entirely separate set of proceedings commenced by their own Children Act application (or originating summons).
 Adultery is not a fact that can be relied upon in applying for the dissolution of a civil partnership.
What is the court’s approach to maintenance?
In Scotland spouses are entitled to support from each other for so long as the marriage subsists, i.e. up until the point of decree of divorce being granted, dependent upon needs, resources, and any other relevant circumstances. Need is not interpreted as the need to penny pinch, rather reasonable needs are assessed with reference to the lifestyle enjoyed by the parties during the marriage. A spouse could expect to receive such support as agreed or ordered by a Court until such time as settlement terms as a whole have been agreed, or the Court orders otherwise. Should either party experience a material change in circumstance there is always the option of revising the amounts payable.
Separately, a divorcee is entitled to financial provision on divorce which can include financial support post-divorce, in addition to a capital award. This support is known as Periodical Allowance (PA) and is, other than in exceptional circumstances, payable for a maximum period of three years post-divorce. Even that time period is unusual and a clean break is favoured by the Scottish Courts where possible.
When negotiating a settlement with a view to embodying agreed terms into a Minute of Agreement, spousal support both pre and post-divorce can be recorded and enforced as required.
It is often suggested that payment of financial support for such a short period is unfair particularly in a case involving a traditional marriage where one party has foregone a career thereby income and pension benefits to care for any children of the marriage. In this respect, there is scope within the legislation to argue for an unequal division of capital in one party’s favour based on their economic disadvantage in terms of career and pension accrual in the interests of the other party or the children of the marriage. Any such argument would be bolstered by evidencing one party will bear the economic burden of caring for children of the marriage (child must be under the age of 16). There is also the matter of child support which can be negotiated and agreed, or applied for via the Child Maintenance Service.
In England there is also the ability to claim (or agree and record in Minutes of Consent) payment of maintenance pending suit (until the grant of Decree Absolute) and spousal maintenance (periodical payments) after the divorce. Similar to in Scotland, orders for maintenance pending suit (pre-final order) and final orders which include provision for spousal maintenance are capable of enforcement, if required.
The level and term of spousal maintenance is assessed with reference to need, taking into account the lifestyle that the parties enjoyed during their marriage and the parties’ incomes and outgoings. The Supreme Court has made clear that there can be no sharing claim with regard to the parties’ income stream, meaning that the award will be needs based. The claiming party should not suffer ‘undue hardship’, but some hardship is acceptable.
The key difference in the Scottish and English systems is the approach of the Court to the term for which spousal maintenance is payable. In England, the Court has a statutory duty to consider if a clean break is appropriate under Section 25A of the Matrimonial Causes Act, however the Court is not limited to ordering maintenance for a term of three years. The Court will not adjust the capital award it would otherwise make, in order to avoid the need for one party to pay maintenance to the other. That being said, there is the ability to capitalise maintenance; for example in a case where the Court considers the capital assets should be divided equally, the party who would pay periodical payments could offer (or be ordered) to capitalise those payments in order to achieve a clean break.
In respect of term, there has been a firm move away from ‘joint lives’ orders (requiring Party A to provide Party B with periodical payments as long as they both live). The Court will balance the relevant factors and look at what constitutes a reasonable period of time for the receiving party to adjust to independence. The Court has the ability to Order (and the parties have the ability to agree) there be a statutory bar preventing the receiving party applying to extend the term for which the maintenance is payable.
Child maintenance is also dealt with by the Child Maintenance Service in England. Only in cases where the non-resident parent earns in excess of £156,000 gross per annum, does the Court have jurisdiction to set the level of Child Maintenance.
What is the court’s approach to dividing the capital assets and what is included within matrimonial property?
Matrimonial property in Scotland is clearly defined as being any asset or liability in the parties’ joint or sole names acquired between the date of marriage and date of separation. The date of separation is important to identify from the outset as it is on that date that the assets and liabilities are valued. Excluded from the definition of matrimonial property is any gift from a third party or inheritance so long as that gift or inheritance remains in the same form. As soon as that gift or inheritance is transposed or invested in matrimonial property (for example contributing to a mortgage or acquiring an asset during the marriage) that transaction will have the effect of creating matrimonial property.
The starting point for division is taken to be fair or equal sharing unless there are special circumstances justifying a departure of equal sharing in one party’s favour. Such arguments include the source of funding of matrimonial property, which if by way of an inheritance or gift could justify unequal division. There are also the arguments available as set out above in terms of economic advantage/disadvantage and the economic burden of childcare. The impact of such arguments upon the settlement will depend upon the circumstances of the case including the value and nature of the assets available for division.
Matrimonial property is not defined in statue in England and Wales and the Court has the jurisdiction to deal with all of the assets both parties to the marriage hold at the time of their divorce. Matrimonial property is comprised of assets acquired during the parties’ marriage, but it is possible for assets which either party brings into the marriage to be converted to matrimonial property during the course of the marriage. For example if the pre-acquired property is ‘mingled’ with matrimonial assets (i.e. if a flat Party A owns before the marriage is sold and the equity used as a deposit to enable the parties to purchase their matrimonial home, it may be said by Party B that those monies have been mingled and thus are now matrimonial, despite the origin being a non-matrimonial asset). It is also possible for non-matrimonial property to be ‘invaded’ if that is required to enable the parties to meet their capital needs. For example if one party in a marriage received an inheritance during the marriage which is not mingled in any way, whilst the starting point will be that the inheritance is non-matrimonial, the Court may still invade it, if required to allow both parties to meet their housing needs. If the non-matrimonial assets are not required to meet needs however, they can be ring-fenced. The same is the case for post-separation accrual, i.e. wealth built up by one party after the date of separation.
Similar to Scotland, the starting point is a 50:50 division of the matrimonial capital assets. The Court will depart from a 50:50 division of matrimonial assets (and only invade non-matrimonial assets) if it is required to enable both parties to meet their capital needs, i.e. usually to rehouse. Any relationship generated need, such as caring for children, will be addressed via maintenance, not an adjustment to the capital division of assets.
For parties who may have the option of divorcing in either England or Scotland, the difference in outcome depending on which jurisdiction you elect may be stark. It is essential to take advice as early as is practicable concerning the need to secure jurisdiction in either Scotland or England, from lawyers who can collaborate with colleagues in the other jurisdiction in order to provide advice as to which is the best option very quickly. In any case where there is more than one potential jurisdiction to deal with a divorce and family finances, it is important to (a) take advice without delay and (b) take that advice from international family lawyers.
Finally, it is noteworthy and very positive that in both jurisdictions there has been a significant shift towards out-of-Court resolution and seeking an amicable solution whilst also keeping costs to a minimum. Both Rayden Solicitors and Turcan Connell offer mediation, collaborative law and arbitration.
This blog was co-authored by Lindsey Ogilvie of Turcan Connell in Scotland. For more information on Lindsey and Turcan Connell please click here