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Learning From Our Differences: An Insight Into The English And Scottish Approach To Family Law

Earlier this year, Irwin Mitchell invested in Scotland-based firm Wright, Johnston & Mackenzie (WJM). This creates a unique collaboration that seeks to leverage the strengths of each jurisdiction’s legal systems. For family law in particular, the law and procedure in England and Wales is very different to Scotland, and this collaboration enables both firms to understand and highlight the distinctive features of each system, and how they can work together to benefit clients. 

There are three key distinctions between family law provision in England and Wales, and Scotland:

  1. The divorce procedure: England and Wales now have ‘no-fault divorce’. Whilst it is possible to divorce in Scotland without apportioning blame, this can only be done after 1 year of separation (with the consent of the other spouse), or 2 years without their consent.
  2. Financial provision: London is renowned for being the ‘divorce capital of the world’, with financial provision upon being divorced being guided ultimately by a wide discretion as to what a judge would consider ‘fair’ in all the circumstances. This can include high value, long duration maintenance orders, especially where there are children of the marriage. In Scotland, financial provision is much more prescriptive. 
  3. Cohabitation: In England and Wales, unmarried couples do not have rights over one another’s property automatically and any protection is very limited. In Scotland, cohabitants do have rights, and are protected in a variety of scenarios upon separation. 

Key differences in these two neighbouring jurisdictions: 

Divorce Procedures: No-Fault vs. Grounds for Divorce

English family law is known for its no-fault divorce system, which was introduced in April 2022, allowing couples to seek divorce without having to prove blame on either side. In contrast, Scottish family law still adheres to a fault-based divorce model, which requires spouses to establish one of four grounds for divorce: adultery, unreasonable behaviour, desertion for at least one year, or living apart for one year (with consent) or two years without consent.

The difference in divorce procedures can have a significant impact on the time and emotional energy required for a divorce. English divorces now tend to be more straightforward, with a move away from an emphasis on assigning blame, while Scottish divorces may be more contentious and time-consuming due to the need to prove fault in some cases.

Financial Support: Matrimonial Causes Act 1973 vs. Family Law (Scotland) Act 1985

English and Scottish family courts take significantly different approaches to handling finances upon divorce. In England, the Matrimonial Causes Act 1973 (MCA 1973) governs financial settlements, and family judges have broad discretion when determining financial settlements. They consider various factors including the age, income, earning capacity, financial needs and obligations of each party and the standard of living enjoyed by the family during the marriage. They aim to achieve a fair outcome for both parties, often resulting in more variable and case-specific rulings.

In Scotland, financial matters in divorce are primarily regulated by the Family Law (Scotland) Act 1985. Scottish family law is characterised by a more structured and formulaic approach, with defined guidelines for spousal maintenance and property division. The Scottish legal system operates with a specific definition of "marital assets," which typically includes all property acquired during the marriage. Assets acquired before marriage are generally considered separate, and they do not form part of the matrimonial pot. This distinction provides greater clarity and predictability in financial settlements, as opposed to the discretionary approach in English law.

It might be assumed that, with a more fixed system in Scotland, individuals will automatically fare better there than in England during financial remedy proceedings. However, a homemaker in Scotland may not be entitled to the same level or duration of maintenance as they would be in England, where the law is more flexible in this regard. 

Cohabitants' Rights: Scotland vs. England

One of the most notable distinctions between Scottish and English family law is the recognition of the rights of unmarried couples, often referred to as cohabitants. In Scotland, cohabitants have legal protection, allowing them to make claims if a committed relationship ends, and one party has been disadvantaged. This claim must be made within one year of the end of the relationship.  In November 2022, the Scottish Law Commission published a paper proposing further reforms in this area, indicating the ongoing evolution of cohabitants' rights in Scotland. Recommendations by the Commission include extending the remedies available and the time limit for making a claim. 

Additionally, if an unmarried partner dies without a Will, the surviving partner can make a claim against the deceased partner's estate (within a time limit of six months). 

In contrast, English family law does not recognise the rights of unmarried couples in the same way. Cohabitants do not have the same legal protections, and the law offers limited recourse in the event of separation or the death of a partner. Whilst there is recourse for unmarried couples to make a claim (under the Trusts of Land and Appointment of Trustees Act 1996 in relation to property, and under Schedule 1 of the Children Act 1989 in relation to financial support for unmarried parents), protection is limited. Almost half of all adults in England and Wales believe that cohabiting couples are protected by a ‘common-law marriage’ which is not the case. 

The partnership between Irwin Mitchell and WJM offers a unique insight into how protection for cohabitants can work in practice, i.e., in Scotland, and offers a great opportunity for the two firms to work together to feed into proposed cohabitation reforms in England and Wales. 

Irwin Mitchell and WJM

The partnership between Irwin Mitchell and Wright, Johnston & Mackenzie offers a unique perspective into the family law intricacies in England and Scotland. Whilst clients will of course need to receive jurisdiction-specific advice, the collaboration fosters a dynamic exchange of knowledge that goes beyond borders. The partnership provides a distinctive, practical understanding of how the two family law systems operate and presents a unique opportunity to contribute to informed reforms; hopefully shaping the future of family law practice in both England and Scotland.

For further information please contact Tom Quail, Partner at Wright, Johnston & Mackenzie.