Now that Scotland has spoken, what next for family law?
Scotland has spoken: to the joy of some and the despair of others, she will remain part of the UK.
Although we wait on the specifics of the further devolved powers that Scotland will be granted, we can be certain that the world of family law will not be too disrupted. It is, then, essential to recall the substantial - though often forgotten - differences in divorce procedures between England and Scotland. While Scotland has, primarily through Gretna Green, been cast historically in a romantic role regarding marriage, when it comes to divorce the highlands can be a far frostier climate than balmy England.
The law relating to the finances of divorce are laid out in the Family Law (Scotland) Act 1985 as amended by the Family Law (Scotland) Act 2006. While in England divorce procedure is structured around early and complete disclosure through forms E and FDRs, there are no equivalents to these in Scotland.
Both pursuer (petitioner) and defender (respondent) set out their case in turn; then, if a settlement is not reached, the case moves directly from the procedural hearing to final hearing. Furthermore, one cannot seek financial provision - that is, ancillary relief - after decree of divorce (the Scottish equivalent to both Decree Nisi and Decree Absolute); and any post-divorce maintenance is limited to three years, unlike in England where it depends to a large extent on the age and needs of the children.
Discrepancies regarding jurisdiction also abound. Scotland is not a member of the European Union in its own right, so the European jurisdiction rule (a ’first past the post’ race to file a divorce petition before any potentially competing jurisdictions) does not automatically apply.
Rather, Scotland relies on the Domicile and Matrimonial Proceedings Act 1973 which pays no heed to the relative timings of commencing divorce. It should not be assumed, then, that the second court seised will stay its proceedings until the jurisdiction of the court first seised is established; and, if so established, that the second court must decline jurisdiction (Article 19 Brussels II).
Family law is littered, therefore, with stories of millionaires making the most of the Scottish jurisdiction to avoid paying their wives what would be seen in England as their fair share. The wife of one England-based multi-millionaire went up to Scotland to be near her family when the marriage began to deteriorate; and the subsequent divorce took place north of the border.
Had the divorce proceeded in England, it is likely that the wife would have received a clean break payment of tens of millions of pounds that would have provided for her and her children’s needs ongoing. However, in Scotland, she received less than £1m, and a car.
Through its ability to attract global wealth, its constant innovation and the inclination of courts to be kinder to claiming spouses, London has cemented its status of divorce capital of the world. With so many sharing the London court’s perception of what constitutes ‘fair’, English law is likely not to adopt the Scottish provisions any time soon.
Ayesha Vardag is president of Vardags