Article for the North East Times
As a firm located on the cusp of Northumberland we frequently advise clients on cross border divorces, where one or both spouse have lived or remaining living in Scotland. What many do not realise is that despite the close proximity of our kilt wearing neighbours, their laws relating to divorce and financial assets are entirely different, and some may say, as elusive as the Loch Ness monster….
The first key consideration is whether the Scottish or English courts have jurisdiction to deal with divorce. Both may potentially have jurisdiction but this will depend on a number of factors, including the length of time the parties have lived in that particular country and whether they can establish a permanent intention to remain there. In cases where either court can deal with the divorce it is important to seek specialist advice immediately to find out in which country you are likely to achieve the most advantageous financial settlement.
In England and Wales the court’s approach to financial remedy is to balance the principle of equal sharing of assets against both parties’ reasonable needs. In Scotland the division of assets is far more arbitrary. Whereas in England, assets acquired pre-marriage or post-separation may be taken into account, in Scotland these assets are considered strictly “non-matrimonial”, with the possible exception of a family home purchased before the marriage. Generally the division of assets will be on an equal basis, unless there is an exceptionally strong argument for unequal shares. Even where there is a departure from equality this will rarely go beyond 60/40. Conversely in England the division of assets can be anything required to meet the parties’ needs. There is also a strong emphasis on achieving a financial clean break under Scottish law and the courts are less ready to award on-going spousal maintenance. In cases where maintenance is ordered this rarely extends beyond a three year term, unlike in England where maintenance can be ordered for the parties’ joint lives.
Given the stark difference in approaches it is crucial to seek advice at an early stage if cross border divorce may affect you.
Written by Rebecca Tarn, Solicitor, Major Family Law, The Divorce and Family Law Specialists, 12 West Road, Ponteland, NE20 9SU. T: 01661 82 45 82 twitter: @RebeccaTarn