Contrary to initial assumptions, family laws differ south of the border. Family law is a devolved matter in the United Kingdom, which means that each home nation can govern their individual laws regarding family matters. This is reflective of the entirely different legal systems that operate in these separate parts of the UK. And whilst there are matters where there is overlap, there are a number of legislative differences between the nations. For the purpose of this blog, we will focus on 5 key differences between the operation of family law in Scotland and England.
Scottish law recognises rights and responsibilities afforded to cohabitants. The rights and responsibilities are set out in the Family Law (Scotland) Act 2006. Although limited in nature, cohabitants in Scotland at least have some degree of safeguard compared to cohabiting couples in England. In fact, in England, cohabiting couples do not have any legal recognition, meaning that neither party involved in a cohabitation would be entitled to financial support or a share in the other person’s assets if the relationship were to come to an end (unless they have a binding agreement which stipulates such). With the continual rise in the number of couples opting to cohabit, there is anticipated to be further advancements in the law in Scotland and a recognition in England that it should follow Scotland’s example.
On the 6th of April 2022, legislation which introduced ‘non-fault’ divorce was enrolled in England. This change also applied to the dissolution of a civil partnership. As well as effectively removing fault, the legislation also meant that it is no longer possible to contest a divorce in England, except in cases where the date of separation is disputed. If couples do decide to opt for the non-fault route, there is a 26 week ‘period of reflection’, where parties are encouraged to consider if divorce truly is in their best interests. In Scotland, if couples wish to divorce via the non-fault route, they will have to endure a period of non-cohabitation for one year where both parties consent to the divorce, or two years where they do not.
The process for granting a divorce differs between England and Scotland. In England the divorce process involves two stages: 1) The granting of Decree nisi and 2) Decree absolute. Decree nisi is a provisional order that states that the court does not see a reason as to why the marriage should not be dissolved. The Decree absolute is the final order that legally ends the marriage and can be granted six weeks and one day after the nisi is issued. In comparison, Scotland has a one-off decree of divorce system, which means that a single order is enough to divorce the parties. Therefore, in Scotland, there is no separate interim stage.
It is not unusual for one spouse to have some degree of financially dependency on the other. To properly recognise and consider this, courts can grant spousal maintenance orders which require one spouse to pay the other a periodical allowance, often in monthly payments, from
the date of divorce. In England, spousal maintenance is governed by the Matrimonial Causes Act 1973 which sets out that spousal maintenance can be paid by one spouse to the other for as long as necessary, even indefinitely. In Scotland, spousal maintenance is governed by the Family Law (Scotland) Act 1985 which places restrictions on the period of time in which maintenance is to be paid following divorce. The period is defined as a maximum of three years unless there are exceptional circumstances. In many cases, no spousal maintenance is payable post-divorce in Scotland.
In Scotland, family law matters are normally dealt with in the Sheriff Court, which has jurisdiction over a range of family law issues, including divorce, adoptions and orders relating to children. In England, family law matters tend to be dealt with in the Family Court, which is a court specifically designed to hear family law matters.
Differences in the law between England and Scotland are certainly not unique to family matters. However, one may have expected the laws of the two nations to be more similar in practice than they are. We at Blackadders have the expertise necessary to advise clients on Scottish family law matters. If you, or someone you know, is looking for family law advice with a sympathetic and personable touch, please contact a member of the Blackadders family law team working in: Aberdeen, Dundee, Edinburgh, Glasgow, and across Scotland.
Blackadders team of family lawyers appreciate from their years of experience and expertise the completely normal stresses that will arise and how best to manage them. If you, or someone you know, is looking for family law advice with a sympathetic and personable touch, please contact a member of the Blackadders Family Law team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.