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In the first of a two-part consideration, Fiona Turner and Noel Ferry compare divorce and dissolution in England and Wales and in Scotland

With increasingly different approaches being taken by the governments in Westminster and in Edinburgh in relation to COVID-19 restrictions, the recent re-emergence of forum shopping in the controversial decision of Villiers v Villiers [2020], and the looming prospect of what Brexit will look like for family lawyers on an international basis, it seems more apt than ever for family law practitioners to look even closer to home at the significant differences in family law between the two largest nations within the union itself. With a general increase in mobility and property ownership each side of the border, intra-country issues arising from relationship breakdown should be in the forefront of every practitioner’s mind.

This two-part article will detail the main differences between family law in Scotland and in England and Wales in relation to divorce and dissolution (on which this first part will focus) and financial arrangements, including for cohabitants. It will also reflect on the growing area of pre-nuptial and cohabitation agreements and the different history and treatment of these agreements in each jurisdiction. We will highlight tips for those dealing with cross-border cases, and some of the traps a practitioner could inadvertently find themselves in when it is important to ‘keep the heid’ as they say in Scotland, i.e. to stay calm.

Terminology

The language used in the two jurisdictions differs and some of the main differences are set out in the table below:

Terms used in each jurisdiction
England and Wales Equivalent Scottish term
Family Court/County Court level Sheriff Court – where most routine work is undertaken
Family Court/High Court and above Court of Session – where the more complex work is undertaken
Financial remedy Financial provision
Petition Initial writ in the Sheriff Court
Summons in the Court of Session
Petitioner Pursuer
Respondent Defender
Decree nisi/decree absolute There is only one decree of divorce in Scotland
Court order Interlocutor
Appeal Reclaim in the Court of Session
Appeal in the Sheriff Court

Grounds for divorce and civil partnership dissolution

In both jurisdictions, there is only one ground of divorce/dissolution and that is that the marriage or civil partnership has broken down irretrievably or an interim gender recognition certificate under the Gender Recognition Act 2004 has been issued after the marriage or civil partnership. However, irretrievable breakdown has to be established by a particular set of circumstances, which differ depending on whether the proceedings are issued in England and Wales or in Scotland, as detailed in the table below:

Circumstances for irretrievable breakdown
  England and Wales Scotland
Legislation Matrimonial Causes Act 1973 and the Civil Partnership Act 2004 (CPA 2004) Divorce (Scotland) Act 1976 (as amended by the Family Law
2004 (CPA 2004) (Scotland) Act 2006) and CPA 2004
Petition issued before first anniversary of wedding/civil partnership registration No Yes
Adultery Yes (save in relation to civil partnership) Yes (save in relation to civil partnership)
Behaviour Yes Yes
Desertion Yes No
One year’s separation No Yes - with consent
Two years’ separation Yes - with consent Yes – no consent required
Five years’ separation Yes – no consent required Not applicable

As such, divorce or civil partnership dissolution proceedings can be brought in Scotland immediately after a wedding or civil partnership registration, rather than waiting one year as in England and Wales. Parties can also issue proceedings in Scotland after one year of separation with consent and two years without consent. Longer time periods apply in England and Wales, i.e. two years with consent and five years without.

England and Wales is to introduce no-fault divorce, which, together with other changes to the process and the grounds for divorce, will remove the requirements of adultery and behaviour. The Divorce, Dissolution and Separation Act 2020 received royal assent on 25 June 2020 and it is anticipated it will come into effect in autumn 2021.

Jurisdiction

To bring proceedings, it is necessary to establish jurisdiction. This tends to be based on concepts of habitual residence or domicile. In relation to divorce the relevant provisions are in the Domicile and Matrimonial Proceedings Act 1973 (DMPA 1973) and for civil partnership the CPA 2004, s225 and the Civil Partnership (Jurisdiction and Recognition of Judgments) (Scotland) Regulations 2005, SSI 2005/629.

Jurisdictional rules for England and Wales which replicate those in Council Regulation (EC) No 2201/2003 of 27 November 2003 (Brussels II bis) have been inserted into s5(2), DMPA 1973 by the Jurisdiction and Judgments (Family) (Amendment etc) (EU Exit) Regulations 2019, SI 2019/519 in relation to England and Wales, and ss7-8, DMPA 1973 in relation to Scotland. In addition, the Jurisdiction, Judgments and Applicable Law (Amendment) (EU Exit) Regulations 2020 have been issued in draft and will amend SI 2019/519, in particular as to saving and transitional provisions. See also guidance issued by the government titled Family Law Disputes Involving the EU: Guidance to Professionals from 1 January 2021. Post implementation period (IP) completion day, domicile (particularly sole domicile) will be of much greater significance, and so steps should be taken to establish the domicile of both parties at an early stage.

In summary, the basis for the issue of divorce/dissolution proceedings in each jurisdiction is as follows.

Procedure

England and Wales

The process for obtaining a divorce or dissolution is the same, regardless of the ground/fact upon which the divorce petition is based. It is assumed that readers of this article will be familiar with the procedure in England and Wales.

Jurisdictional rules for habitual residence/domicile
  England and Wales Scotland
The petitioner (pursuer in Scotland) and the respondent (defender in Scotland) are habitually resident in that jurisdiction Yes Yes
Both parties were last habitually resident in that jurisdiction and one party still resides there Yes Yes
The respondent is habitually resident in that jurisdiction Yes Yes
The petitioner is habitually resident in that jurisdiction and has resided there for at least a year immediately prior to the presentation of
the petition 
Yes Yes (note that in the Sheriff Court a period of residence of 40 days in
the specific jurisdiction of the Sheriff Court immediately preceding
the raising of the initial writ is required)
The petitioner is domiciled and habitually resident in that jurisdiction and has resided there for at least six months immediately prior to the presentation of the petition Yes Yes
Both parties are domiciled in that jurisdiction (marriage only) Yes Yes
Or, if none of the above apply:

During the transitional Brexit period: no court of a EU member state has jurisdiction under Brussels II bis and either party is domiciled
in the jurisdiction on the date when the application is issued. 

Post the transitional Brexit period, i.e. from 1 January 2021: where either party is domiciled in the jurisdiction on the date when the
application is issued (see above).
Yes Yes

Scotland

In Scotland, there are two different processes by which a divorce/dissolution can be obtained and the procedure that a couple will take will be dependent on individual circumstances and whether there are children involved. The two types of procedure are:

  • a simplified or ‘do it yourself’ divorce; or
  • the non-simplified/ordinary procedure.

The simplified divorce procedure applies if there are no children under 16 and financial matters have already been resolved by agreement. It is the most cost-effective way of ending a marriage if circumstances allow for it. This type of divorce is only based on either one year of separation with the consent of both parties, or two years’ separation (without consent). This method is essentially a paper exercise and does not involve either party attending the court. It generally takes no more than two to three months in contrast to proceedings which are contested which can often take a year or more.

If there are still financial matters in dispute, or issues in respect of children to be resolved, a normal (ordinary) divorce action is required.

The process of applying for a divorce in Scotland is by way of an initial writ being lodged at court.

Location of the divorce/dissolution and stay of proceedings

Schedules 1 and 3, DMPA 1973 set out when the court must make an obligatory stay (or a mandatory sist in Scotland) for concurrent proceedings, i.e. where proceedings have been issued in both England and Wales and in Scotland for the same marriage.

An obligatory stay (mandatory sist) applies where:

  • proceedings for divorce or nullity of marriage are continuing in a related jurisdiction (see below);
  • the parties to the marriage have resided together after the marriage;
  • the place where the parties:
    • resided together when the action in the court was begun; or
    • last resided together (if they did not reside together when the action was begun),

      is in that jurisdiction; and
  • either of the said parties was habitually resident in that jurisdiction throughout the year ending with the date on which they last resided together before the action was begun.

Related jurisdiction means any of the following: England and Wales, Scotland, Northern Ireland, Jersey, Guernsey and the Isle of Man (the reference to Guernsey being treated as including Alderney and Sark).

The test relates to the place where the parties ‘last resided together’, not habitual residence. While this will usually be obvious in most cases, there could occasionally be grey areas especially when parties may live from time to time in two separate properties situated in different countries. The obvious example might be a wealthy couple who have a country estate in Scotland and an expensive apartment in London which they flit between depending on their social activities. Where they may not have been getting on for some time and stayed in separate properties, a weekend stay together in Scotland – or England – prior to separation might just be sufficient to establish a stay in the other country.

Often where a divorce ends up taking place is a matter of chance, and only later does the significance of location become apparent. However, if a client takes early advice prior to separation, the importance of the last place of residence together should be discussed.

Conclusion

The key message of this article is simple: when a cross-border issue arises, seek immediate advice from a practitioner in the other jurisdiction to ensure that all issues have been properly explored and considered to best protect your client’s interests.

The concluding part of this article will look at financial provision on divorce/dissolution, pre-nuptial agreements and also the law relating to cohabitants, an area that differs significantly in Scotland when compared with England and Wales. 

This article was first published in Family Law Journal (Legalease) www.lawjournals.co.uk.

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