Scotland

Sources of Law

The Family Law (Scotland Act) 1985.

Divorce (Scotland) Act 1976

Children (Scotland) Act 1995

Case law also relevant

Jurisdiction

Brussels II applies- EU Member States.

Domicile and Matrimonial Proceedings Act 1973- Related Jurisdictions

Domicile and Habitual Residence

As per England and Wales. A person’s domicile will be Scotland.

Conflict of Law/Applicable Law to be Applied

Lex fori - with the possibility to take account of foreign law in certain cases.

Pre-Nuptial Agreements

The Scottish Courts are very reluctant to interfere with properly drafted pre and post nuptial agreements.

Separation Agreements

Separation agreements can be registered and will then be enforceable as if it were a court order.

Divorce

The principal ground for divorce is irretrievable breakdown of marriage which is established on one of more of the following facts. Adultery, behaviour, 1 years separation with consent to divorce, 2 years separation.

Divorce is initiated by the serving of writ or summons.

There is no requirement to be married for a year before you can file for a divorce.

There is no separate Decree Nisi and Decree Absolute.

Finances/Capital/Property

The court will apply the framework of principles set out in the Family Law (Scotland) Act 1985. The overriding principal is fair division of matrimonial property and a fair division is deemed to be an equal division unless there are special circumstances to justify otherwise.

The norm would be a 50:50 division of matrimonial property regardless of the length marriage, although other principles may be used to achieve an award in excess of a 50:50 split.

“Matrimonial Property” includes:

1. all property belonging to the parties at the date of separation which was acquired by them, otherwise than by way of inheritance or gift from a third party between the date of marriage and the date of separation i.e. inherited and pre acquired assets are excluded from the definition; and
2. a house and furnishings acquired before marriage, but for use as a family home.

Finances/Maintenance

Periodical allowance (maintenance) may be awarded if payment of a capital sum is insufficient to satisfy the payee’s requirements and if there has been a need for continuing support.

It is unlikely that maintenance will be for any more than three years from divorce unless there are exceptional circumstances and little account is taken of different earning capacities.

Child Maintenance

As per England and Wales although Scotland does not have an equivalent of Schedule 1 Children Act 1989 awards for unmarried mothers. By and large, all matters of child maintenance are dealt with by the Child Support Agency.

Cohabitants

Cohabitants enjoy fewer rights than spouses. The court has no jurisdiction to distribute property as it can do on divorce.

However, a person can apply to court for a limited financial settlement from their former cohabiting partner. The application must be made within 1 year of the cohabitation ending.

Civil Partnership/Gay Marriage

Governed by the Civil Partnership Act 2004.

With thanks to Scott Cochrane of Brodies LLP, 15 Atholl Crescent, Edinburgh, EH3 8HA www.brodies.co.uk