It is sometimes possible for a married couple to commence divorce proceedings in either England or Scotland.

Few people faced with this choice recognise the very different approaches taken by the two jurisdictions to divorce and the division of finances.

These differences can lead to a significantly different financial outcome in one country as compared with the other. Which of the jurisdictions will likely produce the most advantageous outcome will depend on the specific circumstances of the marriage.

Divorce in England or Scotland

Just a few of the key differences to take note of are outlined below:

  • In England and Wales, assets brought to the marriage by either party can be ordered to be shared. In Scotland, capital; assets held by either party before the marriage (except for the family home) do not form part of the property to be divided.
  • In England and Wales, inheritances or gifts received during the marriage can be shared. In Scotland, such inheritance or gifts are generally excluded from the matrimonial asset pool to be shared.
  • In England and Wales, the Courts can order maintenance to be paid for a fixed term of any length or even joint lives. In Scotland, periodical allowances can only continue for a maximum of 3 years. This can make a vital difference for couples who are income rich but capital poor.
  • In England and Wales an appropriately worded financial order is required as well as the final Decree to adequately deal with financial claims. In Scotland just the final decree is required.
  • In England and Wales, should the couple consent to the divorce and wish to rely on their separation they need to have been separated for two years. In Scotland, the period of separation required is only one year.

When deciding in which jurisdiction to commence proceedings it is often important to consider the merits and pitfalls of each so that an informed decision can be made and the most beneficial jurisdiction can be chosen. It can be vital to do this quickly, since the merits and pitfalls of one jurisdiction for one spouse can often be the reverse for the other – either party is often able to commence proceedings in either jurisdiction and it can be extremely difficult to change the jurisdiction once proceedings have commenced.

We are able to advise promptly on issues concerning jurisdiction to give you the information you need to make the right decision and act in a timely way.

Andrew Barton is a partner in the family law team at Stephens Scown in Exeter.  To discuss divorce in England or another jurisdiction contact Andrew, please call 01392 210700 or email enquiries@stephens-scown.co.uk