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The I do’s and don’ts of divorce law in Scotland

The I do’s and don’ts of divorce law in Scotland

Divorce isn’t easy for anyone involved, and with the best of intentions, family and friends will often offer advice on what should and shouldn't be done. However, there are often misconceptions about the laws in Scotland and you should be wary of what you see online about celebrity divorces and separations. Divorce law in Scotland is very different to England and other countries, and it is easy to assume that what happens elsewhere, particularly in England, will apply to Scotland.

There are lots areas where the two systems diverge. Here are just some of them.

Timing and clean breaks

In Scotland, the financial arrangements between spouses must be resolved before divorce is granted. The money side of things can be sorted out by agreement, or by the court if that isn’t possible.  After that is done, divorce can be granted, and the final line is drawn under the marriage. In contrast, in England, a divorce can be granted before financial settlement. 

Matrimonial property and splitting it

In Scotland the concept of matrimonial property is key, however, this simply doesn’t arise in English law. The Scottish system aims to define what assets should be divided on divorce, and distinguish them from assets belonging to the spouses before they were married. In England, there is much more of a focus on the parties’ needs, and the courts have a much wider discretion to make orders which meet them. The benefit of the Scottish system is that is produces certainty, but often at the expense of flexibility and the ability to account for future needs.

Maintenance

It has been suggested that, when compared to England, Scottish divorce law is less generous when it comes to maintenance. It’s true that in Scotland an entitlement to maintenance after divorce is generally more restricted, and is usually limited to the period of three years from the divorce. Comparatively, in England it is more common for maintenance to be payable for longer periods. However, it’s important to look at the individual circumstances of any case and not to assume that the overall settlement will be worth more in England than it would have been in Scotland. It may just be that the whole settlement is structured differently because of the divergence of approaches in the two systems.

Our advice

Our advice is always to seek advice  about your own situation and personal circumstances as early as possible and not make assumptions about the worst (or best) case for your family. We offer a range of fixed prices for our Family Law services. For more information or advice, contact a member of our specialist Family Law team on 03330 430150.

About the authors

Lucy Metcalf
Lucy Metcalf

Lucy Metcalf

Partner

Family

Catriona Kemp
Catriona Kemp

Catriona Kemp

Trainee Solicitor

Family

For more information, contact Lucy Metcalf or any member of the Family team on +44 131 357 1642.