Gavin Howe
Scottish law and English law are two different legal systems within the United Kingdom. Since the Union with England Act 1707, Scotland has shared a legislature with England and Wales, but the two countries have fundamentally different legal systems. There are differences in the courts systems, the laws relating to property taxes, personal injury claims, and divorce settlements, as well as in the drawing up of a will. Even certain legal terms differ: for example, the crime of arson in England is called fire-raising in Scotland.
| Characteristics | Values |
|---|---|
| Legal sources | Scottish law recognises four sources of law: legislation, legal precedent, specific academic writings, and custom. |
| Legislation | Legislation affecting Scotland and Scots law is passed by the Scottish Parliament on all areas of devolved responsibility, and the United Kingdom Parliament on reserved matters. |
| Influence of EU law | Scottish law has been more influenced by EU law and the European Convention on Human Rights. |
| Courts system | Scotland has three separate courts – civil cases are tried in the courts of session, criminal cases in the court of judiciary, and the Sheriff Courts handle both civil and criminal cases. |
| Common law | The common law of Scotland is based on the customary laws of the different cultures that inhabited the region, mixed with feudal concepts. |
| Judicial decisions | Scottish judges focus on the underlying principles behind legal rules rather than strictly adhering to prior case law. |
| Property law | Scottish solicitors have a larger hold over the housing market than their English counterparts. |
| Property taxes | There is no Stamp Duty in Scotland, but a Land and Building Transaction Tax is payable. |
| Wills | In Scotland, marriage does not invalidate any previous will, and witnesses can be beneficiaries. Children and spouses have “prior rights” and cannot be excluded from their inheritance. |
| Terminology | Some legal terms are different, for example, arson in England is called "fire raising" in Scotland. |
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What You'll Learn
Property law and conveyancing
There are several differences between Scottish and English property law and conveyancing systems. These differences can cause difficulties for those moving across the border between the two nations. For instance, the time period between the conclusion of missives and the Date of Entry in Scotland is usually much longer than the time period between the exchange of contracts and the completion date in England. In Scotland, the Date of Entry is typically agreed upon at the beginning of the transaction, and the conclusion of missives occurs weeks or even months in advance of the Date of Entry. This can create a problem when an English buyer wants to purchase a property in Scotland, as the Scottish Seller will want to conclude missives on the normal Scottish timeline, which may not be possible for the English buyer.
In England, a potential buyer usually views a property and then makes a verbal or written offer to the selling agent. If the offer is accepted, the property is taken off the market and the conveyancing process begins. However, even at this stage, an English selling agent must notify the seller of any other offers that are received. In Scotland, the system has evolved to allow conveyancers to receive a formal loan offer or satisfy the conditions of an offer before the conclusion of missives.
Another key difference is that in England and Wales, the principle of caveat emptor ("let the buyer beware") applies. This means that the buyer is responsible for checking the legal title to a property before committing to the purchase. English conveyancers must ensure that the legal title to the property is valid, marketable, and free from defects, while also confirming that their clients have the funds to make the purchase.
In terms of the law itself, Scottish property law is part of Scottish private law and is a devolved competence of the Scottish Parliament under the Scotland Act 1998. Scottish property law has its roots in Roman law and the ius commune, but it also incorporates elements of feudalism as a result of the Davidian Revolution in the 12th century. On the other hand, English property law operates on a causal system, where the invalidity of the causa traditionis can annul the transfer. In contrast, Scottish law adopts an abstract system where the causa of the transfer may be void or voidable, but the disposition remains legally valid.
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Wills and inheritance
Scottish and English law differ significantly when it comes to wills and inheritance. This is particularly important for those with property and assets in both countries. In such cases, it is recommended to have two separate wills, one for each jurisdiction, to ensure that your wishes are respected.
In England, the law emphasises testamentary freedom, allowing individuals to dispose of their property as they see fit through their will. However, spouses or civil partners may make claims against an estate under the Inheritance Act 1975. If someone dies without a valid will, their estate is distributed according to the rules of intestacy.
In contrast, Scottish law includes the concept of forced heirship, meaning that close relatives such as spouses, children, and grandchildren, have a legal right to inherit a portion of the deceased's estate, regardless of what is stated in the will. This is known as 'legal rights' or 'prior rights'. These rights grant spouses and children a fixed proportion of the deceased's moveable estate, which includes cash, investments, and personal property, but not land or buildings. The amount each heir is entitled to depends on their relationship to the deceased and whether they have surviving children. For example, a surviving spouse is entitled to a half or a third of the moveable estate, depending on the presence of children. Any remaining funds after fulfilling prior rights obligations are distributed according to the 'Legal Rights' rules, with the final third or half known as the 'free estate' and distributed according to the Succession (Scotland) Act 1964.
Additionally, in Scotland, a cohabiting partner can make a claim to the court under the Family Law (Scotland) Act 2006, and the court will consider factors such as economic disadvantage and the length of the relationship.
The legal requirements for creating a valid will also differ between the two jurisdictions. In England, a will must be signed by the testator and two witnesses, with only the last page requiring a signature. In Scotland, only one witness is required, but both the testator and witness must sign every page of the will. Witnesses in Scotland must provide full identification, and can also be beneficiaries, although solicitors are prohibited from preparing wills that contain a bequest in their favour.
It is important to note that the laws governing inheritance in the case of no will also differ between Scotland and England. In Scotland, spouses and children have an automatic entitlement to inherit part of the deceased's movable estate, regardless of the presence of a will. This is not the case in England, where there are no automatic safeguards for spouses and children.
Furthermore, marriage does not invalidate a previous will in Scotland, unlike in England, where a new will must be made after a marriage or civil partnership.
Finally, the minimum age to make a will in England and Wales is 18 years, while in Scotland, those aged 12 and above are considered to have testamentary capacity.
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Financial settlements after divorce
Scotland and England have distinct legal systems, and financial settlements after divorce are one area where they differ. Divorce settlements in Scotland are governed by principles that aim to achieve fairness and equity between the parties involved. The process involves a detailed assessment of matrimonial property, financial needs, and the welfare of any children involved.
In Scotland, the principle of "fair sharing" is applied, which generally means that all matrimonial property should be divided equally between spouses unless there is a reason for a different split. This includes all assets acquired by either or both spouses during the marriage and before the date of separation, such as the family home, savings, pensions, cars, and even household contents.
One key difference between Scottish and English law is that in Scotland, where the parties have agreed on a settlement without court involvement, that settlement does not need to be approved by the court. In contrast, in England, a negotiated settlement must be approved by the court through a consent order to become legally enforceable. This gives judges in England more discretion in financial settlements, potentially leading to more divorce litigation compared to Scotland.
Another difference lies in the treatment of non-matrimonial assets. Under Scots law, assets acquired by one party during the marriage from an external source, such as inheritance or gifts, are not considered matrimonial assets if kept separately. These assets remain with the receiving party during the marriage and cannot be invaded by the courts. In contrast, English courts can invade non-matrimonial assets to ensure both parties' needs are met, demonstrating a more paternal approach to ongoing financial support.
Prenuptial agreements have been recognised in Scottish courts for centuries and are considered valid and enforceable in divorce proceedings. The courts in Scotland are unlikely to interfere with prenuptial agreements unless there is a valid reason, such as the agreement being unfair or entered into without proper capacity.
Furthermore, in Scotland, divorce settlements aim for a "'clean break' principle, severing financial ties between the parties as soon as possible after the divorce. This means that spouses cannot seek financial settlements or ancillary relief post-divorce. In England, however, spouses have the option to return to court to renegotiate financial settlements after the divorce.
It is important to note that the laws and processes for financial settlements after divorce can be complex and vary between Scotland and England. Seeking legal advice from a qualified solicitor specialising in family law is crucial to understanding your rights and ensuring a fair settlement.
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Criminal law and evidence
Scottish and English legal systems have distinct approaches to criminal law and evidence, despite sharing a common legal history. One key difference is that Scotland operates under a hybrid system of common law and civil law, while England primarily follows common law. This results in variations in legal processes and the treatment of evidence.
In Scottish criminal courts, the prosecution must prove its case beyond a "reasonable doubt," which is a higher standard of proof than the "balance of probabilities" used in English civil courts. This higher standard emphasizes the seriousness of criminal accusations and aims to protect the accused. Scotland also recognizes a third verdict in criminal trials besides "guilty" or "not guilty": a "not proven" verdict. This verdict means the jury is not satisfied that the accused is guilty, but it does not amount to an acquittal, and it leaves the accused without a positive affirmation of innocence.
The rules of evidence also differ between the two systems. Scottish courts generally admit more evidence than English courts, and there is a greater emphasis on oral testimony and cross-examination. Hearsay evidence, for example, is often admissible in Scotland if the witness is present in court and available for cross-examination, whereas in England, hearsay evidence is usually excluded. Scotland also has a unique procedure called "corroboration," which requires that key facts of the case be supported by more than one source of evidence. This rule is designed to protect against false convictions and ensure the reliability of evidence.
Another difference lies in the sentencing process. In Scotland, the judge determines the sentence immediately after a guilty verdict, whereas in England, there may be a delay between the verdict and the sentencing hearing. Additionally, Scotland has a distinct system of criminal appeals, with a single court, the High Court of Justiciary, hearing all appeals, whereas in England, there are multiple levels of appeal courts.
In terms of criminal law substance, Scotland and England share many offenses, but there are some unique Scottish crimes, such as "breach of the peace," which covers a wide range of disorderly behaviors. Scotland also has a different approach to homicide, with a broader definition of "murder" that includes deaths caused by dangerous driving. The death penalty was abolished in Scotland in 1999, several decades after its abolition in England, reflecting a differing pace of legal reform.
Overall, while the Scottish and English legal systems share a common foundation, their approaches to criminal law and evidence differ significantly, shaped by their unique historical developments and legal traditions. These differences impact the day-to-day practices of lawyers and the experiences of those navigating the criminal justice system in each country.
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Court systems
The Scottish court system differs from that of England and Wales. The Scottish system has four levels of courts, while the English and Welsh system has three. The Scottish court structure consists of the District Courts, the Sheriff Courts, the High Court of Justiciary, the Court of Session (Inner and Outer House), and the Supreme Court. The Supreme Court of the United Kingdom operates across all three separate jurisdictions of the UK, hearing civil appeals from the Court of Session, and appeals from all the civil and criminal courts of England and Wales, and of Northern Ireland. The Supreme Court has no authority to hear criminal appeals from the High Court of Justiciary, which is the supreme criminal court in Scotland. The Court of Session is the supreme civil court in Scotland, and it sits exclusively in Parliament House in Edinburgh. It is both a court of first instance and a court of appeal.
The Scottish court system has specialist jurisdictions, including the Scottish Land Court, which deals with disputes involving agricultural tenancies and crofting, and the Lands Tribunal for Scotland, which handles disputes about private rights in titles for land ownership and land valuation. The Court of the Lord Lyon, headed by the Lord Lyon, who is the King of Arms and senior herald for Scotland, is responsible for civil and criminal enforcement of armorial bearings and the right to use certain titles.
The Scottish court system has different terminology and processes compared to England and Wales. For example, in a Scottish court, the person or body making a claim in a civil action is called a "pursuer", and the opposing party is called a "defender". An article lodged as evidence is called a "production", whereas in England and Wales, it would be called an "exhibit". There is no obligatory disclosure of documents in Scottish court proceedings, and witness statements are called "precognitions".
The Scottish legal system has historically developed separately from English common law, taking influence from continental Roman-based civil law. However, since the Treaty of Union in 1707, English influence has grown, and the two systems have become more similar, especially with the increasing influence of EU legislation.
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Frequently asked questions
Scottish law and English law have distinct differences, despite both operating within the United Kingdom. Scottish law recognises four sources of law: legislation, legal precedent, specific academic writings, and custom. Scottish judges tend to focus on the principles behind legal rules rather than strict adherence to prior case law. Scottish law also draws heavily from Roman law and provides greater flexibility in certain areas.
Scottish law differs from English law in the execution of contracts and legal documents. For instance, the terminology differs, with "subscribed by" and "granter" being used in Scottish law instead of "signed by" and "signee" in English law. Additionally, the concept of counterparts in Scottish law allows for the execution of a contract in separate copies, providing flexibility in the signing process.
Scottish law includes the concepts of "forced heirship" and "legal rights", ensuring spouses, children, and grandchildren have a legal right to inherit a portion of the estate. English law has the concept of "intestacy", where the estate is distributed according to a fixed hierarchy of relatives. Scottish law also has a different process for probate, known as "confirmation", and there are differences in how witnesses and beneficiaries are treated.
