It is a common misconception that filing a divorce petition in England and Wales or Scotland is a uniform process. Even though all three countries are members of the United Kingdom, England and Wales are a different jurisdiction to Scotland. Assets divided in a divorce in Scotland, as well as family law in general, is dealt with very differently than in English or Welsh courts. If you do have a choice of issuing in either England and Wales or Scotland, it is important to consider the Scottish divorce law and division of assets in comparison with English and Welsh laws.
In this guide, we’ll explore the key things you should know when it comes to Scottish divorce law and the division of assets.
When a marriage or civil partnership ends, there is often a race to issue in the more favourable jurisdiction. If, for instance, a couple moves between two jurisdictions, with property in both nations, either of them could initiate the divorce proceedings in the country they are living in. However, according to the Domicile and Matrimonial Proceedings Act 1973, initiating an action first isn’t always the determining factor. When there is a dispute between the internal territories of the United Kingdom (e.g. English court or Scottish court), the key fact is that both courts could be involved, but where the couple lived together last will be the court with jurisdiction.
Although there are differences in how assets are divided in each jurisdiction, there are still common factors that will be considered by the courts in both nations, including:
- How long the couple has been together
- Standard of living
- Ability to earn money
- Living expenses
- Roles – Primary caregiver/breadwinner
What Am I Entitled to in a Divorce in Scotland?
Are assets split 50/50 in divorce in Scotland?
Scottish courts typically prefer to practice the “Clean Break” principle. This would mean that all assets that are included in the matrimonial pot are subject to an equal division. Of course, this would be subject to specific conditions that could sway the division of assets. Such conditions would be –
- If either of the individuals is unable to work
- If one spouse took up the role of primary caregiver and therefore did not have the opportunity to work.
- If an unequal division of assets is essential for the well-being of the children involved. For example, to allow the primary caregiver and the child to live in the family home so as not to disrupt the child’s regular routine.
The Matrimonial Pot
Matrimonial property or the matrimonial pot is a collection of the entire net value of assets belonging to the couple at the time when they formally separated. These assets include those that are both individually and jointly owned. The date of separation or the relevant date for all future proceedings will be the date at which the couple began living separate lives, either under the same roof or when one individual moved out of the house they were previously living in together.
The Scottish courts do not consider any assets that were owned prior to the marriage, inherited during the marriage or obtained after the date of separation, to be included in the matrimonial pot. However, business interests, pensions and life policies can be included in the matrimonial property. This would mean that any debt acquired during the course of the marriage will also be considered a part of the matrimonial pot.
In short, how assets are divided in a divorce in Scotland is that all assets obtained only during the marriage will be considered, regardless of which individual acquired it, except if it is by way of an inheritance or a gift from a third party.
This is very different to the approach practiced by the English and Welsh Courts. The matrimonial pot in this jurisdiction can include assets of any kind brought into the marriage, including pre-marital acquisitions such as property and investments, as well as inheritance or gifts received during marriage. This includes business assets, pensions and life policies as well.
In England, the financial settlement can follow the grant of divorce. Therefore, spouses have the option of returning to court to renegotiate a financial settlement post the divorce. However, in Scotland, this is not possible. According to the Family Law (Scotland) Act 1985 and the Family Law (Scotland) Act 2006, a spouse cannot seek ancillary relief i.e., financial settlements post the decree of divorce. As all finances and arrangements must be resolved before the spouses are divorced, your ex-spouse will not be able to claim any money or financial support after a divorce in Scotland.
The manner in which Scottish and English courts deal with maintenance forms a crucial difference. Scottish law commonly practices the “clean break” principle. The courts aim to divide the matrimonial property as fairly as possible, usually presuming that a 50/50 split is the fairest option. However, finances are split in divorces in Scotland using lump sum payments, pension sharing orders and property transfer orders to settle all the matrimonial property before the grant of divorce. Due to this, ongoing maintenance will only be awarded if this provision of assets is inappropriate or insufficient. It would require the presentation of an exceptionally strong argument to persuade the court to award anything more.
Ongoing maintenance is therefore awarded only in certain cases and, if awarded, it would only be for a maximum of three years post-divorce. In contrast, English courts are typically more willing to consider and award ongoing maintenance post-divorce. The English approach practices the flexibility of maintenance being paid by one spouse to the other for a fixed term of any length, or indefinitely.
It is the general consensus that the spouse that was wealthy prior to the marriage or that has a significant inheritance will receive a more favourable outcome in the Scottish courts. On the other hand, a spouse seeking maintenance for an indefinite period will likely be more successful in the English and Welsh Courts. Thanks to the English court’s generosity in this respect, London is now known as the divorce capital of the world, and the jurisdiction of choice for many.
Is my inheritance split in a divorce?
According to Scottish divorce law, an individual’s inheritance, either prior to the period of divorce or acquired during the course of the marriage, is excluded from the matrimonial pot. This means the inheritance would not be subject to division during the divorce proceedings.
Who gets the house in a divorce in Scotland?
Scottish divorce law and the division of assets dictate that if the home is part of the matrimonial pot, it will typically be subject to a 50/50 split. The court can take a number of decisions here, such as transferring ownership from one spouse to the other or transferring ownership from one spouse to joint names, or vice versa. The outcome will completely depend on the proceedings of the divorce, and Scottish courts will award this on a case-by-case basis.
However, if the house was bought prior to marriage by one of the spouses and not used as a family home, it would not be considered matrimonial property and therefore would not be subject to equal division.
Can my ex take half my pension if we divorce in Scotland?
In short, yes, your pension could be subject to sharing with your ex-spouse. This would mean that your ex-spouse would receive a percentage of your pension which will have to be transferred to them as a lump-sum payment. The fact that this pension can only be accessed on retirement is typically not considered, and as such, the pension amount is treated as a liquid asset. However, as mentioned above, the concept of matrimonial property still applies. When Scottish Courts make a decision with respect to pension, the amount will be calculated only for the duration of the marriage. Therefore, if your pension amount has accumulated prior to or post the marriage, those portions will not be considered part of the matrimonial pot.
Are the grounds for divorce different in Scotland?
Prior to 2006, both the Scottish and English systems for divorce were consistent. According to both systems the sole grounds for divorce was the “irretrievable breakdown of a marriage” which must be evidenced by one of the following reasons –
- Adultery of other spouse
- Unreasonable behaviour of other spouse
- Desertion of 2 years or longer
- 2 years separation with the consent of the other spouse
- 5 years separation without consent of the other spouse
In 2006, Scotland amended these divorce and family law practices. According to the amended laws, the sole grounds for divorce remain the same i.e. irretrievable breakdown of a marriage, however they can be evidenced based on –
- Unreasonable behaviour
- No-fault divorce with 1 year separation with consent or 2 years separation without consent of other spouse.
This means that, in order to file a no-fault divorce and avoid playing the blame-game, you would still have to be separated for one or two years based on consent of the other spouse. Whereas, a divorce on the grounds of unreasonable behaviour or adultery can be used immediately after the fact, without the need to wait for any period of time after the date of separation. In spite of this, 90% of the divorces in Scotland are based on the no-fault divorce procedure with one or two years separation.
In comparison, English & Welsh Courts continued the practice of having to prove fault or go through extended separation periods before a divorce was granted. This made the entire divorce process in England more damaging, contentious and conflict-rich. However, the laws were amended in 2020 and came into effect from April 2022, where the English Courts introduced the no-fault divorce.
Much like Scotland, in English and Welsh Courts, the grounds for divorce remains the same. It is the sole reason of irretrievable breakdown of a marriage. However, with the new amendments, the only evidence needed is a single statement stating this breakdown of the marriage. Unlike in Scotland, there is no separation period needed, but there is a 20-week period of reflection, from when the application is issued to when the conditional order can be applied for. This is in the hope of giving couples time to sort out the division of property, finances, child-care arrangements and also consider reconciliation.
North or South of the Border?
The decision to issue north or south of the border depends heavily on individual circumstances. If both are options, it would be sensible to seek legal advice to establish which is more appropriate for your situation.
At Newtons, we understand that dealing with divorce can be a daunting period. Our solicitors are experts in divorce and separation and division of assets in England and Wales. By enlisting our help, you will have our non-judgemental support and an exceptional commitment to present a strong case. If you would like to discuss your case with us, please contact our experienced divorce and family law team.