Scotland or england? Which system to use?

Hi, I am just at the beginning of the end! My concern is that I currntly live in Scotland where the rules are different but the marital home is in England. I can see that this forum only covers english law but I believe I am justified in raising the separation in either system. Does anyone know anything that will help me make this choice.

Welcome to Wiki - the site is a great source of information, advice and support.
There are many of us who reside in Scotland, and are currently going through the divorce procedure under Scots law, so i am sure that you will find the help and advice from us useful.

You will find that Scots divorce law is very different to English Div law - it is far isimpler for a start. All finacial aspects are sorted out prior to the actual divorce. A separation, agreement can be drawn up, which details all the divsion of assets and alinment (spousal maintence), I am not clear on how it deals with the issue of children as that is not relevent to my own case, so I dont want to give you duff info on that issue! Once the sep agreement has been drawn up and signed by both parties, you may (if your x2b is in agreement) petion for divorce 12 months following separation, otherwise it will be 24 months before you can do that.


The law says that when a married couple get divorced the matrimonial property should be shared fairly between them. When a divorce action is raised, either party can ask the court for orders to achieve this fair sharing. This could be payment of a sum of money known as a capital sum, a transfer of property such as the matrimonial home, or a pension share

What is the matrimonial property?
This comprises all assets owned by a couple, whether individually or jointly, at the date of separation, which have been acquired during the marriage other than by way of gift or succession from a third party. So anything which you owned before the marriage or which you acquired after the date of separation is not included. However, a house or household furnishings acquired by one or both of you before the marriage may, in certain circumstances, be included.
How are these assets shared?
The sharing exercise involves five steps:-

Establishing the date of separation
The date of separation is the date on which husband and wife start to live apart from each other.

Establishing what assets were in existence at that time
These usually include a house, furniture and furnishings, a car, endowment policies, other forms of investment and pension rights. Any outstanding liabilities (mortgage, car finance, personal loans, credit card debts etc) have to be deducted to produce a total net value as at the date of separation.


Establishing which of those assets form part of the matrimonial property
This step involves looking at the individual assets and seeing the circumstances in which they were acquired, for example whether they were
owned by either party before the marriage or were gifted or inherited.


Establishing the value of those assets as at the date of separation
Most assets can be valued fairly easily, for example a house by a Chartered Surveyor, an endowment policy by asking the insurance company for a surrender value, etc.

Special rules apply to endowment policies and pensions. If the policy or pension started before the marriage, the separation date value will have to be apportioned.


Sharing those assets “fairly”
The law says that these should be shared equally unless there are “special circumstances“. This might be where an asset was acquired using inherited money.
What if there are assets which are not matrimonial property?
These don't have to be shared, but they are resources which can be taken into account, as any award made by the court must be “reasonable having regard to the resources of the parties.”





Hope this helps.

Ruby

Apologies if this repeats some of the post above.

There are differences to the procedures and how the law views any capital division and/or long term maintenance.

For example, in England and Wales you must be married for a year before applying for divorce. Then you may apply for the divorce nisi, possibly ancillary relief and finally are granted the absolute decree. The reasons for divorce are often cited as unreasonable behaviour or adultery because this is thought quicker than waiting for two years to divorce with consent or 5 years without.

Assets are valued at the time of divorce, inheritances are a grey area and the 'pot' is divided in a way to leave both parties on the same financial footing. In some cases spousal maintenance is awarded and this can be for extended periods. Also often there are deferred payments, such as when one party maintains an interest in the former marital home to allow the other party and children to remain there until the youngest is 18.

In Scotland however, you don't have to be married for a year to apply for divorce. There is only one divorce decree, applied for once the finances and arrangements for any children are made. There is a strong burden of proof required as evidence to divorce using unreasonable behaviour and adultery and as a consequence 88% of divorces are 1 years separation with consent or 2 years without consent.

Assets/debts (but not inheritances or gifts) accrued between the dates of marriage and *separation* form the matrimonial 'pot' to be divided 'fairly', usually equally. When periodical payments are awarded it's for a period of readjustment, maximum 3 years unless there are extraordinary circumstances and courts seldom order deferred payments. There is a general obligation for all parents to financially support their offspring aged 18-25 whilst in education and training. The overall objectives are fairness, clarity and a Clean Break.

So jurisdiction does make a difference. There are advantages and disadvantages to both systems. Everything else being equal If there are likely to be disputes over jurisdiction or property it would be less complicated to divorce in England. In Scotland court rules and forms are complex – just reading them does not in itself explain how to use them. However, if there are no children or outstanding financial matters or you are likely to reach agreement yourselves it is more straight forward in Scotland.