Key Differences Between Family Law / Divorce in Scotland & England

With the Scottish independence vote having been determined, in this article we turn our attention to another form of establishing independence within Scotland – namely, the granting of a divorce – and assess the ways in which it differs from its counterpart process in England. It is not only the procedure which varies from that used in England, Wales and Northern Ireland, the terminology is also unique to each region and both vocabularies will employed here to aid understanding.

Grounds for Divorce & The Divorce Process

While the grounds on which a person may apply for a divorce are fundamentally the same in both jurisdictions, the shorter timescales in Scotland allow divorces to happen much sooner than elsewhere in the UK. Applications for divorce based on the irretrievable breakdown of the marriage caused by adultery or unreasonable behaviour can, generally speaking, be made at any time after the event, provided the marriage commenced more than a year ago. However, English law requires a separation of at least two years in order to base your petition on the grounds of desertion or non-cohabitation (two years for desertion or consensual separation, five years for non-consensual separation), while in Scotland a mutually agreed divorce may be obtained after one year of non-cohabitation and a non-consensual divorce after two years of non-cohabitation. The ability to divorce in Scotland depends upon the domicile of the spouse(s) and the duration of residence. The rules are complex and persons considering a divorce in Scotland who are unsure of their rights are encouraged to seek personalised guidance from family lawyers within Scotland.

Under English law the application for a divorce is known as a petition (form D8) and is sent by the petitioner to the county court; in Scotland the applicant is termed the pursuer and the relevant form is either an initial writ (G1) if applying to the sheriff court or a summons (13.2-A) if applying to the Court of Session. The recipient of a writ or summons is referred to as the defender, while in England he or she is known as the respondent. Attitudes towards spousal maintenance are significantly different in Scotland, where maintenance can be awarded for up to three years but is commonly granted for a shorter duration, if at all, and as such there is no comparative form for the English Form A upon which applications for ancillary relief (financial support) are made.

Rise of DIY Divorce in the UK

Following recent changes to public funding, “DIY” divorces are on the rise across the UK. In Scotland a pursuer may apply for a divorce provided: it is uncontested by his or her spouse; the parties have reached agreement concerning the division of assets; there are no minor children involved; certain residence requirements are met; and there is no mental health condition precluding either party from managing his or her affairs. However, this simplified procedure is not available to spouses with minor children, those expecting the proceedings to be contested and any divorce on the grounds of adultery or unreasonable behaviour; persons in these circumstances must pursue an ordinary divorce through family lawyers in Scotland. Conversely, so long as the parties are in agreement, even spouses with minor children can utilise the DIY option under English law.

Division of Assets and Child Residence in Separation Agreements/Minutes of Agreement

The decisions reached regarding matters such as the division of assets and child residence may be incorporated into a separation agreement (England) or minute of agreement (Scotland). These agreements may also be used by unmarried, cohabiting partners who intend to separate. Under English law petitioners are required to submit to the court a statement of arrangements concerning care of the children following the divorce.

Decree Nisi in English Divorce

English divorces are granted in two stages: the decree nisi, through which the court grants permission for the parties to divorce, and the decree absolute, which is the actual grant of divorce. Petitioners must wait six weeks and one day following the date of decree nisi before making their final application to court. Only one decree is necessary to legally end a marriage in Scotland and therefore this can make the process quicker. A non-contested simplified divorce in Scotland may be achieved in as little as eight weeks, whereas the six-week delay between decrees under English law generally sees proceedings last for a minimum of three months.

The criteria, documents and terminology used in dissolving a civil partnership in both jurisdictions are largely similar to those involved in their respective divorce procedures. However, the list of acceptable grounds on which dissolution may be granted extends to include the presentation of an interim gender recognition certificate.

For more information on matrimonial and family law in Scotland or England & Wales, including child maintenance liability, consult a qualified legal practitioner – we can steer you in the right direction for free – Contact us here.

See also our guide to some of the best US divorce lawyers here.