Shopping around

Baroness Deech's recent criticism of English divorce law left a hollow ring in the ears of many Scottish family lawyers. While Baroness Deech considers English divorce laws to be unfair to men, and their multi-million pound awards degrading to women, under Scottish divorce laws it is the women who find the divorce laws to be unfair and the parsimony of the financial awards made in big money cases degrading.

Many Scottish divorces have a similar financial outcome to an English divorce; there is insufficient wealth to split between the divorcing spouses. However, in cases with substantial pre-marriage or inherited wealth, or where a spouse seeks maintenance post-divorce, the difference between the two jurisdictions becomes very apparent.

In general terms, a spouse with substantial pre-marriage or inherited wealth, is likely to do better divorcing in Scotland, while a spouse seeking maintenance post-divorce will almost certainly be better off divorcing in England. In Scotland, it is much better to marry someone who will become wealthy, rather than someone who is already wealthy!

While the English court has wide discretion when looking at the question of ancillary relief, Scots law prefers to give divorcing parties a predictable outcome. The price for this, however, is that the court has much less discretion, and instead is required to place an emphasis on the fair sharing of matrimonial property. In Scotland 'matrimonial property' is essentially all property acquired through the income or efforts of the parties during the marriage. This means that pre-marital assets (other than a family home) inheritances and gifts from third parties are all excluded from the pot for division upon divorce.

In most cases, fair sharing of matrimonial property is equal sharing. The Scottish court will also consider the question of 'compensating' for economic advantages and disadvantages, as well as the need to share the economic burden of caring for children of the marriage under the age of 16 years, although awards made under these heads are neither common nor generous.

There are considerably fewer awards of spousal maintenance made in Scotland than in England. When maintenance is awarded it will be for an adjustment period of no more than three years post-divorce, and for an indefinite period only for a spouse who will suffer serious financial hardship as a result of the divorce.

Conflicts of jurisdiction

The differences in the financial regimes between the two jurisdictions can, on occasions, make forum shopping between Scotland and England a possibility worth investigating with your client.

Some divorcing couples end up forum shopping by chance, such as the English-based wife who returns home to the place of her roots in Scotland when the marriage breaks down. Others will quite deliberately set the divorce up in the other jurisdiction; such as the English husband with substantial pre-marriage assets who feels that his marriage is at an end and who persuades his wife that what they need is a fresh start, setting up home in Scotland.

Conflicts of jurisdiction between a Scottish and English divorce are regulated by the Domicile and Matrimonial Proceedings Act 1973 (DMPA). The Brussels II bis rule of whoever raises first wins does not apply to divorces between Scotland and England. Instead, in the event of competing divorces between Scotland and England, the DMPA provides that the jurisdiction that prevails is the one where one spouse remains habitually resident and (crucially) the parties last lived together.

Even if the rules of the DMPA appear to favour a divorce in your client's preferred jurisdiction, it is important to look at the whole picture. Take the example of a Scottish-based family. Most of the matrimonial wealth is contained in the husband's pre-marital assets. The wife who stays at home is a qualified solicitor and the two children are at school. Although they live in Scotland, the husband works in London where he lives from Monday to Friday. His wife discovers he is having an affair and raises English proceedings for divorce. The husband would be much better off divorcing under Scots law; all his pre-marital assets would be kept out of the pot and as his wife is a qualified solicitor she can easily get a job so he will not need to pay her any maintenance. His obvious response should therefore be to raise Scottish divorce proceedings on the basis that his wife is still habitually resident there and they last lived together in Scotland.

Under the DMPA, this would require his wife's English proceedings to be stayed. However, there is a big problem; although his wife has admitted to him that she also has committed adultery he cannot obtain any corroborating evidence. Other than her discrete affair, she has behaved like a saint. Scots law requires a high standard of corroborated evidence before it will grant a fault-based divorce. Although, on one view, the proceedings should be properly brought under Scots law, in this particular case the husband can do nothing to thwart his wife's English divorce as he does not have sufficient evidence of the grounds to raise competing divorce proceedings.

Many couples will find themselves with the potential for forum shopping between Scotland and England when their marriage breaks down. If you discover that a client with marital problems has a Scottish connection or a spouse with one, it could well be to his or her financial advantage to investigate the question of jurisdiction more closely.