In this article, Divorce and Family associate Rebecca Worsley compares Scots and English family law in respect of the division of finances on divorce.

Having qualified as a solicitor in England in 2017, in 2023 Rebecca completed the Qualifying Lawyers Assessment and was admitted to the roll of solicitors of the Law Society of Scotland as a non-practising member.

Capital

The starting point for the division of capital under Scots law is that ‘fair’ division is ‘equal’ division and that matrimonial property should be shared equally.

This is not dissimilar to the ‘sharing principle’ of the English court, which provides that the assets of a marriage should be shared equally unless there is good reason not to. In England, there is often a departure from equality as to how the matrimonial assets are divided, as section 25 of the Matrimonial Causes Act 1973 requires the court to consider various factors, including the parties’ financial needs.

The English court’s concept of ’needs‘ does not exist in Scotland. While arguments can be made in respect of economic disadvantage and a party having the burden of childcare, departures from an equal division of capital in Scotland are rare.

Scotland also has a much stricter definition of what is classed as matrimonial property than in England. North of the border, matrimonial property is any asset acquired from the date of the marriage to the date of separation (known as the “relevant date”) and is valued as at the relevant date. This strict definition leaves less room for parties to make arguments as to whether assets acquired before the marriage have become “matrimonialised” (and therefore open to any arguments that they should be shared).

Further, under Scots law, assets acquired by one party during the marriage from an external source (for example, by way of inheritance or gift) would not be considered matrimonial if they had been kept separately from the rest of the matrimonial pot. While this is also the case in England in some instances, the English court can invade non-matrimonial assets to ensure both parties’ needs are met or view them as resources available to a party to facilitate a departure from equality of the matrimonial assets. Such a power does not exist in Scotland, and those assets would remain with the party who received them during the marriage.

Income

In recent years, the English court has moved away from providing the financially weaker party with long-term maintenance and encourages parties to work towards financial independence. Despite this, it could be said that it still takes a relatively paternal approach to ongoing financial support, usually allowing a period of adjustment to independence for those who need it through spousal maintenance.

In Scotland, however, the general view is that where there is enough capital to go around, ongoing maintenance should not be required by either party. In the rare circumstances where maintenance is granted to enable a party to work towards achieving financial independence, it is limited to a maximum of three years.

Procedure

In England, the divorce and financial remedy proceedings are dealt with under two separate applications. As such, it is possible to get divorced without resolving the financial arrangements between parties, and those claims remain open until they are dismissed by an order of the court. This means that a party could come back and seek to pursue their financial claims at a later date, even if the divorce took place years beforehand.

This issue does not arise in Scotland. The divorce and financial claims are initiated at the same time and are part of the same proceedings. Accordingly, if the divorce is finalised without the financial matters having been dealt with, the parties will not be able to pursue these claims in the future.

Another key financial procedural difference between the two jurisdictions is that in Scotland, where the parties have agreed a settlement between themselves without the court’s input, for example, through mediation, that settlement does not need to be approved by the court. On the contrary, in England, for a negotiated settlement to become legally enforceable, it must be approved by the court by way of a consent order.

Overall

It could be said that there is a greater level of certainty as to the likely outcome of divorce in Scotland. This means there is generally less divorce litigation in Scotland than in England, where judges are afforded more discretion.

While the lack of discretion may seem as though financial claims might be more restricted in Scotland than in England, where there is the potential for proceedings to be issued in either jurisdiction, it is important to consider all of the facts of the case. It might be that on reflection, a party may benefit from the clarity of the approach under Scots law. It is, therefore, vital to seek advice from lawyers in both jurisdictions if you have connections to both countries.

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