Consensus Collaboration Scotland (CSS) are a network of lawyers, financial experts and family consultants who specialise in dealing with divorce settlements made out of court. They say that women may find themselves worse off because of Scots divorce law, despite the Scottish system being accepted as fairer than the rest of the UK.
Divorce rates remain high, with 42% of marriages ending in divorce, and 34% of marriages ending before they reach their 20-year anniversary.
A member of CCS who works for BTO Solicitors LLP, Denise Laverty said: ‘One of the main differences between English and Scots divorce law, is the size of the pot of assets available for division in a divorce. Under Scots law, only the assets accrued between the date of marriage and the date of separation are taken to be matrimonial property. In England, all assets, including property, pensions or investments, are added to the mix, even if they have been accrued before the marriage or after separation.’
She said that this setup benefits women in England for a number of reasons. She said that if a husband bought a house in his name before marrying his partner, in English law, that property could still be transferred to his wife. However, she says, in Scottish law, unless the house was purchased with the intention of it becoming a family home, then it would not be considered as something which would be transferred to his wife.
Mrs Laverty, who is an accredited specialist in Scots and English family law, said that the main difference is that in Scotland, the total assets are split between the parties equally, barring special circumstances.
She says that in England, the court will consider first and foremost the welfare of any children under the age of 18. This means that if the wife becomes the primary caregiver, then the majority of the assets will be given to her.
Despite the extra provisions that are given to women and children in English divorce law, the majority of Scottish family lawyers agree that the system in Scotland is fairer, especially for people who obtained their wealth through inheritance, or before they were married.
Mrs Laverty said that the Scottish system provides a properly defined framework for how to split assets between parties, as well as how property is defined and valued.
She says that the English system is much more complex, and that the court holds a lot more discretion than in Scotland. This is something, she says, that makes it difficult for lawyers in England to provide their clients with advice on the likely outcome of their settlements.
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