This article has been written by Fiona Turner a Family Law Partner in Weightmans’ English Offices and Noel Ferry a Family Law Partner in Weightmans’ Scottish Office.
Following the Villiers decision, reinvigorating forum shopping (Villiers v Villiers [2020] UKSC 30), and with the implications of Brexit now a reality, family law practitioners must ensure that they are aware of the significant differences in family law between England/Wales and Scotland.
We highlight some of the main differences in divorce/dissolution law. This article does not focus on the different approaches taken in financial cases, or how/when to apply for a stay in concurrent proceedings, when proceedings have been issued in both England and Scotland for the same marriage.
Divorce/Dissolution Procedure
England and Wales
It is assumed that all readers of this article will be familiar with the English procedure, although that – and the grounds for divorce/dissolution – will change when we adopt no fault divorce. The Divorce, Dissolution and Separation Act 2020 received Royal Assent in the Summer of 2020 and is anticipated to become law in/around Autumn 2021.
Scotland
In Scotland, there are two different processes, which are dependent on individual circumstances, and if there are children involved.
They are
- A Simplified or “Do It Yourself divorce”; or
- Non Simplified/ Ordinary procedure
There is also only one decree of divorce in Scotland (rather than the Decree Nisi/Absolute in England/Wales).
The Sheriff’s court deals with most routine work, and the Court of Session with more complex cases.
Simplified Divorce Procedure
If there are no children under 16 and financial matters have already been resolved by agreement an application can be made for a simplified divorce.
This type of divorce is based on either one year of separation with the consent of both parties, or two years’ separation (without consent).
It generally takes no more than 2-3 months and is a paper based process.
Ordinary Procedure
If there are still financial matters in dispute or issues in respect of children to be resolved a normal/ordinary divorce action is required.
The process starts with an initial writ being lodged at Court.
Grounds for Divorce / Dissolution
In both jurisdictions, the only ground of divorce/dissolution is that the marriage has broken down irretrievably. In Scotland, a petition/writ can be issued before the first anniversary of the marriage, unlike in England.
Irretrievable breakdown has to be established by a particular set of circumstances, which differ depending on whether the proceedings are issued in England/Wales or Scotland.
| England/Wales | Scotland | |
| Adultery | Yes (n/a for dissolution) | Yes (n/a for dissolution) |
| Behaviour | Yes | Yes |
| Desertion | Yes | No |
| 1 years’ separation | No | Yes – with consent |
| 2 years’ separation | Yes – with consent | Yes – no consent required |
| 5 years’ separation | Yes – no consent required | N/a |
Jurisdiction for Divorce/Dissolution
| England and Wales | Scotland | |
| The petitioner (pursuer in Scotland) and the respondent (defender in Scotland) are habitually resident in that jurisdiction | Yes | Yes |
| Both parties were last habitually resident in that jurisdiction and one party still resides there | Yes | Yes |
| The respondent is habitually resident in that jurisdiction | Yes | Yes |
|
The petitioner is habitually resident in that jurisdiction and has resided there for at least a year immediately prior to the presentation of the petition
|
Yes | Yes (note that in the Sheriff Court a period of residence of 40 days in the specific jurisdiction of the Sheriff Court immediately preceding the raising of the writ (petition) is required) |
| The petitioner is domiciled and habitually resident in that jurisdiction and has resided there for at least six months immediately prior to the presentation of the petition | Yes | Yes |
| Both parties are domiciled in that jurisdiction (marriage only) | Yes | Yes |
| Or, if none of the above apply: from 1.1.2021, where either party is domiciled in the jurisdiction on the date when this application is issued | Yes | Yes |
The relevant provisions are found in the Domicile and Matrimonial Proceedings Act 1973 (DMPA 1973) / CPA 2004, s 225 and the Civil Partnership (Jurisdiction and Recognition of Judgments) (Scotland) Regulations 2005, SSI 2005/629.
We can provide specialised advice in both England/Wales and Scotland, and assist in any cross border family cases which span both jurisdictions.
