What are the main differences between Scots and English family law?
There are some striking differences between Scots and English law relating to financial provision on divorce, for example, in relation to spousal maintenance, the treatment of pre-marriage assets, and the approach to pension sharing. The grounds for divorce, and the legal procedure, is also quite different. In Scotland, there is no Decree Nisi followed by Decree Absolute - it’s a one-stage process. One of the most striking procedural differences is that in Scotland, the granting of decree of divorce ends the right of one party to make financial claims against the other; in other words, financial remedy must be dealt with before decree is granted.
In England, by contrast it is possible to divorce first and then make a claim for financial provision, potentially many years later. In some cases, the same set of facts can give rise to a hugely different outcome north and south of the Border. At Morton Fraser, we've developed a niche practice advising clients with a connection with more than one part of the UK about where they can competently litigate, and where their interests might be best served. We've become familiar with the rules which determine which set of divorce proceedings has primacy in a situation where there is ongoing divorce litigation in more than one part of the UK. We are often instructed by people living in Scotland who find themselves on the receiving end of English proceedings.
Where there is the possibility of divorce proceedings in more than one country, it is vital for clients to obtain early advice about how best to protect their interests
What happens when an ex-pat wants to file for divorce?
We tend to find that, when a marriage goes awry, ex-pats will typically look to their home country for legal assistance, rather than relying on the legal system of the place in which they happen to be living. Depending on where the parties are living and on their nationalities, the rules governing jurisdiction (which are of course currently based on EU Regulations) often permit people to initiate divorce proceedings in the UK even where neither party is living there.
Where there is the possibility of divorce proceedings in more than one country, it is vital for clients to obtain early advice about how best to protect their interests, often from lawyers in more than one country. The ultimate decision about where to apply for divorce can depend upon various considerations, such as where the bulk of the assets are situated. Divorcing whilst living abroad can trigger various legal consequences, for example, immigration issues, so it’s important to think through these at an early stage.
Family law cases in general can become more complicated when children are involved, and that is most certainly the case in an international context.
How complicated does dividing assets become with ex-pat divorces?
If an ex-pat divorce is proceeding in the UK, then the principles governing financial provision will be those of the part of the UK where the divorce is taking place. However, matters can become complicated in a variety of ways. The first problem can be one of obtaining disclosure in relation to assets situated abroad. There are steps we can take in UK divorce proceedings to find out the nature and extent of assets in the UK, but it’s potentially much harder if these are scattered across a number of countries. If there are significant assets abroad, then enforcing any judgment made by a UK court can also be extremely difficult. Sharing pensions situated outside of the UK, whilst not always impossible, is complex even where the parties are entirely cooperative.
Can things become more complicated when children are involved?
Family law cases in general can become more complicated when children are involved, and that is most certainly the case in an international context. Whilst a UK court might have jurisdiction to make orders relating to children abroad by virtue of the parties' divorce taking place in the UK, actually enforcing those orders can at times be impossible. An ex-pat with children often can't simply return to the UK with the children, without obtaining either the consent of the other spouse or the approval of the court in the place in which they have been living.
Do you think much will change in this area with Brexit?
That's a very good question, to which I don't think that anybody currently has a clear answer! Given that our jurisdictional rules in family cases are all based on European Regulations, there will undoubtedly be some changes, but exactly what will change is not yet clear. There are some who would favour reciprocal arrangements with the EU which would have the effect of maintaining the current framework, and others who would like to take this opportunity to entirely re-write the rules. Now that Brexit has finally happened, I think it's very likely that over the coming months, interested bodies will start to engage about what they would like to see happening next.
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Rhona Adams’ story into law
I'm a Partner of and Head of the Family Law Team at Morton Fraser. I've been here since 2002, when the small firm where I was previously a partner, merged with them. Before I came to MF, although the greater part of my practice consisted of family law, I also did some personal injury and medical negligence work. On arrival at MF, I had to decide which area I wanted to specialise in going forward. I chose family law and haven’t looked back! Lots of people asked me at the time if dealing with nothing but divorcing clients wasn't going to be terribly depressing, but in truth, I have really enjoyed it.
It has helped greatly to be surrounded by an excellent and highly collegiate team. We are one of Scotland's biggest family law teams, spread across our offices in Edinburgh and Glasgow. No matter how tricky or obscure the problem, there is always someone in my team who has experienced the issue and can offer some words of wisdom. The team have all been encouraged to develop their niche interests and we can boast expertise in many aspects of family law, from international child abduction to prenuptial agreements, and from public law children cases to farming divorces.
The two things I've done during my legal career which have had the biggest impact on my practice as a family lawyer have been firstly, training as a family mediator, and secondly, becoming dual qualified in Scots and English law. I became an accredited mediator, long ago in 1998 (which makes me feel very old!) I found mediation training quite inspirational – the insights and techniques I learned have definitely informed my entire approach to practice. Mediation has never been the mainstay of my work but I have had a fairly steady stream of it in recent years. When it works, it’s very rewarding.
Learning about English family law was fascinating for a Scots lawyer – the legal language, and to some extent the underpinning philosophical approach, is quite different. My practice is now mainly centred on financial provision and seems increasingly to feature cases either with an intra-UK cross-Border element or cases with an international element.
Rhona Adams
Partner
Email: rhona.adams@morton-fraser,com
Direct dial: 0131 247 1339
www.morton-fraser.com
