Long before Brexit, UK lawyers were grappling with jurisdiction issues applying between the different parts of the UK ….
The applicable law on divorce jurisdiction as between England/Wales, and Scotland (which has not significantly changed post December 2020) can be found in the Domicile and Matrimonial Proceedings Act 1973, where precedence is given to the last place the couple lived together as long as one party still resides in that place. However, it has become more important than ever for Scots lawyers to appreciate the differences between Scots and English Family Law. The difference is more than mere terminology and in some cases can make a dramatic difference to outcomes in financial provision cases. This article will not detail every intra-UK difference but will highlight some of the major differences between Scotland, and England/Wales in relation to divorce and financial proceedings.
English Divorce Proceedings
The grounds for divorce and the procedure for getting divorced is very different in England/Wales.
Currently, an applicant has to prove one of five facts, which are essentially the same as the ‘old’ Scottish position prior to amendment of the basis of divorce in the Family Law (Scotland) Act 2006. However, this will change in late autumn 2021 when no-fault divorce will start to apply in England/Wales, in terms of the Divorce, Dissolution and Separation Act 2020.
In England/Wales, divorce proceedings are initiated by a petition. The petition is a pre-printed form which requires to be populated by the applicant. The form includes a section in which the applicant needs to state if they may wish to make an application for financial orders. If the form is not properly completed, this may have the effect of debarring the applicant from seeking financial orders at a later date. It is therefore important that this form is completed carefully. If one or other party to a divorce wants the court to make orders for financial provision, that party needs to initiate a separate application for financial provision, either at the same time as the divorce application is made, or at a later date. These are often referred to by English lawyers as ‘Form A’ proceedings. Usually, Form A proceedings will run alongside divorce proceedings.
Divorce in England is a two stage process and as Scots lawyers it’s important to appreciate that the final decree, the Decree Absolute, can be pronounced without the financial matters being resolved. Pronouncement of the Decree Absolute also does not prevent either party from making a financial claim against the other in respect of marriage at any time in the future.
Principles of English Financial Provision
The most fundamental difference between Scots and English Family Law is the distinct differences in the manner in which matrimonial assets are defined and shared.
In England, the principles which govern financial application are contained Section 25 of the Matrimonial Causes Act 1973. Section 25 sets out a number of factors to which the court must have regard when considering financial applications. These include the parties’ respective incomes, earning capacity, ages, length of marriage and standard of living. The court must also consider where necessary any disability and financial needs, obligations and responsibilities of the parties post-divorce. The factors also compel the court to consider value of benefits which will be lost on divorce such pension rights, which in some cases are very significant.
The fundamental aim of the English courts is to achieve fairness. The needs of the parties can override the possibility of an equal division. These ‘needs’ are most commonly housing needs, income (spousal maintenance) need and pension needs, which have been generated by the marriage. Whilst in Scots family law the starting point is equal sharing of the matrimonial assets, the focus for English courts is the needs of the parties and how these can be met.
An English court can consider all of the parties’ assets in order to ensure that needs are satisfied, including those which derive from outside of the marriage, including inherited and pre-marriage property. This is in contrast to Scottish proceedings where housing or income needs tend not to be the focus of financial settlement. Ultimately, in England/Wales, each case turns on its own facts. This can make it difficult to give clear advice, but reference to the Section 25 factors allows some consistency, even when discretion is at its heart.
As mentioned earlier all the assets in the parties’ names are capable of being shared where needs are in play. There is no separate statutory definition of matrimonial property in England, but there are features that can help to determine how assets will be defined and treated. Recent cases demonstrate that the English court is now more willing to identify non-matrimonial property and to protect it from the sharing principle, provided that needs is not an overriding factor.
Pensions have always been a difficult area. Pensions may be very valuable assets and the way in which they are treated on divorce can impact substantially on an individual’s financial security going forward. Recent research reveals that 28% of women waived their pension rights compared to 19% of men during their divorces. One out of four divorces involve parties over the age of 50 and data shows that women are significantly more likely to worry about the impact of their divorce on their retirement. The research indicates that too frequently people overlook the mutual value of their pensions. This could have a harsh financial impact on women upon retirement.
The manner in which pension interests are valued and treated is quite different in terms of English law. Where pensions are a significant feature of a case (usually where parties are over 50 and pension has accrued during a long marriage), English lawyers will instruct actuaries or pension-on-divorce experts to calculate the true value of a pension. This is often considerably more than the CETV of that pension. Pensions have a number of benefits which are not included in the CETVs provided by most pension administrators.
In England the usual approach is to ensure that each party will have an equal income from the pension benefits at retirement, and often there will be a joint remit to a pension expert asking for a report on how equal pension income for both parties might be achieved. This is a far more complex exercise than simply dividing the CETV of the pension equally between the parties, as might happen in an equivalent Scottish case. For a party looking to secure a share of their spouse’s pension, the law in England/Wales may result in a better outcome, if it can be applied.
So if you think there are any features in your case which suggest that there may be an option to proceed in England/Wales, an early view should be sought from an English family lawyer.
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