Financial separation on divorce: Scotland vs England

While Scotland and England are both part of the UK, their legal approaches to financial separation on divorce differ significantly. Understanding these differences is important for anyone facing cross-border family law issues. Please note that any references to divorce also apply to the dissolution of civil partnerships.

In Scotland, matrimonial property is defined as assets and liabilities acquired by either party, or jointly, between the date of marriage and the date of separation. The date of separation is recognised as the point at which the relationship has irretrievably broken down. Assets are valued as of that date, and the default position is an equal division between the parties. However, there are circumstances in which a departure from equal sharing may be justified. One such example is where one party has taken on the majority of childcare responsibilities and, as a result, experienced economic disadvantage. If that party has suffered a reduction in earning capacity or missed career opportunities due to their role within the family, the court may consider a more favourable division of assets to reflect the imbalance and support a fair outcome. In contrast, England takes a more discretionary stance. Courts may consider assets acquired before the marriage or even after the date of separation, depending on the circumstances. The division of the matrimonial property is guided by the principle that the matrimonial property is divided fairly, but English courts frequently depart from an equal split to meet the financial needs of each party. This approach is more needs-based.

Regarding pensions, Scotland only considers the portion accrued during the marriage up to the date of separation as part of the matrimonial property. Implementation of a pension share only occurs after the Decree of Divorce has been granted so there is no scope to share based on the growth of the pension post-separation. In contrast, English courts may consider post-separation growth and awards are often expressed as a percentage that is calculated at the time the order takes effect.

In Scotland, the law around divorce favours a clean break. Spousal maintenance is rarely awarded and, if granted, is typically limited to a maximum of three years. The emphasis is on achieving a clean break and enabling both parties to move forward independently. England, however, allows for long-term or even lifetime maintenance. This reflects a more flexible and needs-based approach.

Another key distinction between the two legal systems lies in the timing of financial claims. In Scotland, financial claims relating to matrimonial property must be made prior to divorce. Once the divorce is finalised, no further financial claims can be pursued. It is possible for parties to engage in private settlements without court approval, often narrated within a Minute of Agreement. However, in England, financial claims can be made after the divorce, sometimes even years later. Any private agreement must be approved by the court via a consent order, which adds an extra later of protection, but also extra cost for the parties.

In summary, Scotland prioritises clarity, finality and equality whereas England leans towards flexibility, discretion and fairness based on individual circumstances. These differences can have a significant impact on the parties involved and it is important to be fully informed if you are facing a cross-border separation and to be aware of the differences if there is an opportunity to choose one forum over the other.

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If you have any queries relating to any of the issues raised in this article, our team are are very well placed to assist. Please contact us here or email Sophie.Greig@andersonstrathern.co.uk if you have any questions on this topic.