Gavin Howe
There are several differences between Scottish divorce laws and those of England and Wales. While the grounds for divorce are the same in both nations, Scottish spouses must provide evidence for the breakdown of their marriage, which could include adultery, unreasonable behaviour, or non-cohabitation. In England and Wales, a simple declaration of irretrievable breakdown is sufficient. Additionally, financial matters in Scotland are resolved concurrently with the divorce, creating a clean break, while in England and Wales, they are legally separate, allowing for financial settlements to be reached after the divorce. Furthermore, Scotland has different residency rules and timescales for divorce, with a maximum wait of two years compared to five years in England and Wales.
| Characteristics | Values |
|---|---|
| Grounds for divorce | The ground for divorce in both England and Scotland is the "irretrievable breakdown of a marriage". |
| Evidence for breakdown | In Scotland, spouses must provide evidence for the breakdown, such as adultery, unreasonable behaviour, or non-cohabitation. In England, a simple declaration of breakdown is enough. |
| Divorce application and financial settlement | In Scotland, divorce applications and financial settlements are concurrent and legally connected. In England, they are distinct and can be dealt with separately. |
| Divorce timescales | Scotland has different timescales for divorce, with a maximum wait of two years, compared to five years in England. |
| Divorce costs | Scotland is considered more financially stringent, with higher legal fees. Legal aid is available in Scotland depending on income and capital. |
| Childcare arrangements | In Scotland, the welfare of the child is considered paramount. In England, the courts can adopt a more paternalistic view, focusing on the needs of the child. |
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What You'll Learn
Grounds for divorce
In the UK, you can obtain a divorce if you have been married and living apart for at least a year and your relationship has permanently broken down. The grounds for divorce are similar in Scotland and England, with the sole ground for divorce being the "irretrievable breakdown of a marriage". However, there are some key differences in the requirements for proving this.
In Scotland, spouses must provide evidence or proof of the breakdown of their marriage. This could be for one of the following reasons:
- Adultery: If one spouse has committed adultery and the other wishes to end the marriage on this basis, they must provide evidence to prove this.
- Unreasonable behaviour: If one spouse has behaved in a way that means their partner should not reasonably be expected to live with them, this can be cited as a reason for divorce. Examples include violence, excessive drinking, or neglect.
- Non-cohabitation: If the couple has not lived together for at least one year (with the other party's consent) or two years (no consent required), this can be used as proof of a marriage breakdown.
If the court is not satisfied that one of these reasons has led to the irretrievable breakdown of the marriage, the divorce may be refused.
In England and Wales, since the Divorce, Dissolution and Separation Act 2020 came into force in April 2022, the notion of "'fault" has been removed from divorce proceedings. This means that neither spouse has to prove the other's unreasonable behaviour or satisfy any other grounds to justify a divorce. A simple declaration of the irretrievable breakdown of the marriage is sufficient.
Additionally, in England and Wales, the divorce application is distinct from the post-divorce financial settlement, whereas in Scotland, they are legally connected. In England and Wales, financial matters can be resolved after the divorce has been issued, and either party can make financial applications to the court even after a final divorce order has been granted. In Scotland, the divorce decree is connected to the resolution on financial provision, creating a "'clean break' where financial matters are resolved ahead of time.
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Financial settlement
Scotland and England have different laws and processes for financial settlements during divorce. In Scotland, financial provision is dealt with concurrently with the divorce being granted and cannot be readily revisited afterward. In England, divorce and financial remedy proceedings are separate applications, meaning that a party could pursue financial claims even years after the divorce.
In Scotland, prenuptial agreements have been recognised as valid for centuries. The Family Law (Scotland) Act 1985 specifically recognises that parties to a marriage may have already reached an agreement before the marriage or during it. The Scottish courts are unlikely to interfere with prenuptial agreements unless there is a good reason to do so, such as the agreement not being entered into fairly.
In Scotland, the concept of matrimonial property is crucial. The assets to be divided on divorce are only those that are "matrimonial", meaning assets acquired by either spouse during the marriage and before the date of separation, other than by inheritance or gift. Assets acquired before the marriage, through inheritance, or after separation are excluded from the pot of assets to be divided. Scottish law presumes that a 50/50 split of matrimonial property will be fair, and this is always the starting point unless special circumstances merit an unequal split.
In England, all resources held by the parties, whether in their joint or sole names or held with third parties, worldwide, are assessed when determining a reasonable and fair financial settlement. The court will consider which assets constitute "matrimonial property" acquired during the marriage, as well as assets acquired before the marriage/relationship and those acquired post-separation. The English court can invade non-matrimonial assets to ensure both parties' needs are met or to facilitate a departure from equality in the division of matrimonial assets.
The English courts can adopt a more paternalistic view based on the needs of the parties. While the starting point is equal sharing, an unequal division can be ordered if the parties' needs cannot be met through the equal division of assets acquired during the marriage. In recent years, English courts have moved away from providing long-term maintenance to the financially weaker party and instead encourage financial independence.
The Scottish courts, on the other hand, are reluctant to impose ongoing maintenance. Periodical allowance payments continue for a maximum of three years post-divorce and are intended as an "adjustment" payment rather than ongoing income.
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Divorce application
Divorce laws in Scotland differ from those in England and Wales. While the grounds for divorce are the same—the "irretrievable breakdown of a marriage"—Scottish applicants must provide evidence for the reasons behind the breakdown. This could include adultery, unreasonable behaviour, or non-cohabitation for one or two years. In England and Wales, a simple declaration of breakdown is sufficient.
To apply for divorce in England and Wales, you must fill out a divorce application form. You can get help with filling in the form at a Citizens Advice office. You will need to provide your original marriage certificate or a certified copy, as well as proof of your name change if you've changed it since getting married. You will also be asked for your spouse's current address so that the court can send them a copy of the divorce application.
There is a £612 fee to apply for divorce in England and Wales. You may be able to get help with the fees if you are on benefits or have a low income. You will need a debit or credit card to apply online. Solicitors can apply online using a MyHMCTS account.
In Scotland, divorce applications are made to the sheriff court or the Court of Session. You can access the relevant forms and guidance notes on the Scottish Courts and Tribunals Service website. The simplified divorce/dissolution procedure is designed so that you can 'do it yourself' without needing to get legal advice. However, you can contact Citizens Advice Scotland or the Law Society of Scotland for help finding solicitors in your area if you do want legal advice.
There are fees associated with lodging a divorce application in Scotland, and these depend on whether the application is lodged in the sheriff court or the Court of Session. You may be entitled to fee exemption if you receive certain state benefits. There is an affidavit on the application form that needs to be sworn before a Justice of the Peace, Notary Public, or Commissioner for Oaths. This service is free if you go to a justice of the peace.
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Time before divorce
The time one has to wait before initiating divorce proceedings in Scotland differs from that of England and Wales. In England and Wales, the only way to obtain a divorce without a spouse's consent is to live apart from them for five years, unless adultery, unreasonable behaviour, or desertion can be proven. On the other hand, in Scotland, the longest one will have to wait before initiating divorce proceedings is two years.
In Scotland, the Divorce (Scotland) Act 1976 outlines the law regarding the time before a divorce can be granted. The sole basis for a divorce is the "irretrievable breakdown of a marriage", which can be established by the following:
- Adultery
- Unreasonable behaviour, where the spouse behaves in a way that the other party cannot reasonably be expected to cohabit with them
- The couple has not lived together as husband and wife for a year, with the other party's consent, or two years without the other party's consent
It is important to note that a divorce based on adultery requires proof, which can be challenging to establish without the cooperation of the spouse and their new partner. Unreasonable behaviour is also dependent on the specific circumstances of the couple.
Additionally, in Scotland, financial matters and childcare arrangements must be resolved before initiating divorce proceedings. This is in contrast to England and Wales, where the divorce application is separate from the post-divorce financial settlement.
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Legal costs
In terms of legal costs, there are some key differences between Scotland and England when it comes to divorce proceedings.
In Scotland, the cost of divorce can vary depending on several factors, including the complexity of the case, the number of court appearances required, and whether you hire a solicitor or represent yourself. Generally, the simpler the divorce, the less it will cost. For example, if you and your spouse can agree on the terms of your divorce and there are no complicated financial matters or disputes over child custody, you may be able to complete the process for a few hundred pounds. However, if your divorce is more complex or contested, legal fees can quickly escalate. Solicitors in Scotland typically charge by the hour, and while rates vary, you can expect to pay several hundred pounds per hour for a specialist family law solicitor in some cases.
There are ways to keep costs down, such as using a fixed-fee service for straightforward divorces or engaging in mediation to resolve disputes outside of court. Legal aid may also be available for those who cannot afford a solicitor, although this is means-tested and subject to eligibility criteria.
In England, the cost of divorce can also vary significantly depending on similar factors. However, one key difference is that the court fees for initiating divorce proceedings are typically higher in England than in Scotland. Currently, the fee for starting a divorce in England is £593, while in Scotland it is £130 for the initial application and a further £80 for the second stage of the process. Like Scotland, solicitors in England charge by the hour, and costs can mount if your case is complex or goes to trial. Again, there are ways to keep costs down, such as using a fixed-fee service, mediation, or collaborative law, where both parties work together to reach an agreement without going to court.
It is worth noting that legal aid is generally less readily available in England than in Scotland, and strict eligibility criteria must be met. However, in both countries, it is always advisable to seek legal advice at the earliest opportunity to understand the potential costs involved in your specific circumstances. While cost may be a factor in considering your options, it is important to remember that the legal processes in Scotland and England are different, and the approach that is best suited to your case may be more important than the potential cost savings.
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Frequently asked questions
The sole ground for divorce in both Scotland and England is the "irretrievable breakdown of a marriage". However, in Scotland, spouses must provide proof of this breakdown, such as adultery or unreasonable behaviour. In England, a simple declaration is enough.
In Scotland, financial matters are resolved ahead of the divorce being granted and cannot be revisited afterward. In England, they are legally separate, meaning a financial settlement can be reached after the divorce.
Scottish courts have a wide range of powers and discretion in awarding costs. They consider solicitors' fees and the conduct of both parties. The respondent may be ordered to pay the legal fees of both sides. English courts, on the other hand, can adopt a more paternalistic view based on the needs of the parties, with the starting point being equal sharing.
In England, unless people can prove their marriage has broken down due to adultery, unreasonable behaviour, or desertion, the only way to obtain a divorce without a spouse's consent is to live apart for five years. In Scotland, the longest time you will have to wait is two years.
Yes, provided you meet the Scottish divorce residency rules and other criteria.
