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27 SEP 2012

David Hodson on International Family Law: Anglo Scottish divorce lost in translation and history

International Family Law Practice by David Hodson

David Hodson

If ever there was an example of significantly different outcomes across national borders, notwithstanding close historic ties, it must surely be England and Scotland. Members of a strong and strategic political Union for almost 700 years yet with legal traditions so very different. Crucial advice is essential in any case in which a family has connections with both countries. I was aware that the Brussels II principle of first to issue did not apply between England and Scotland but I confess that until last Friday, I was unaware of how fundamental timing is in dealing with Scottish divorces

The occasion was an excellent conference in Edinburgh on Friday, 21 September, 2012 run by Morton Fraser, a leading Edinburgh law firm with a substantial family law practice. Moreover and quite appropriately given the nature of their cross-border work, they have dual qualified Scottish and English family lawyers. The conference attracted many lawyers from across Scotland and many from various parts of England. I spoke on the EU laws now applying directly into the law of England and Scotland. Janys Scott QC explained recent case law in Scotland in cohabitation cases, with curious crossover with the English Law Commission proposals. Then, innovatively, there were split sessions with explanations on Scottish law for English lawyers and on English law for Scottish lawyers. Given that we were in adjoining rooms, the hoots of laughter coming from the session explaining English law didn't give feelings of massive respect for what we are doing south of the border!

However in the session led by Rhona Adams explaining Scottish law, there was more often stunned silence coupled with disbelief. To English eyes, there are elements of financial provision in Scotland which are very different, even perhaps unfair on women.

I suspect it is general knowledge for most lawyers doing any amount of international work that spousal maintenance, alimony, is very limited in Scotland where it is known as periodical allowance. The relevant statute provides three years after the divorce however three years is not the norm. Many are only two years. Often there is none. There is a provision for longer than three years but only to alleviate "serious financial hardship" which in practice is rarely found in Scottish case law. It might only be an applicant who has been out of the job market for very many years and would be in her 50s or later so that working would be unrealistic, or in circumstances where a party has a disability or illness and cannot work. Bluntly, the expectation is that post divorce, both parties are capable of working to earn a living, even if one of them is not working at the date of divorce. It is irrelevant that the applicant would be unable to earn an income to bring herself up to the standard of the marriage. It is often irrelevant that the decision may have been taken during the marriage that the wife would not work and so she has entirely burnt her employment boats (although she might then have a little more than 50% of the capital award on the basis of "economic disadvantage"). There is still some amazement that this legislation of 1985 got through because of the prejudice to the stay at home wives. It is simply a very different culture of expectation in Scotland.

What was very new for me was the timetable for responding to a divorce and the impact on financial matters. When a divorce petition is served, there is a timetable for response in the usual way. If the respondent, known in Scotland as the defender, does not answer the divorce petition in 21 days of service, not only is the petitioner, known as the pursuer, able to proceed with the divorce but it is then too late for the respondent to ask for any financial orders. Upon the final divorce order, there are no more financial claims. There is no need for a separate application e.g. Form A. There is no need for any other notification or warning. It was accepted that perhaps the wording accompanying the Scottish divorce petition may not be ideal and as complete as appropriate in such dire circumstances. Nevertheless we were told that there are a number of instances where the respondent spouse, perhaps the wife, has not responded in time after service of the divorce proceedings and thereby has lost the opportunity to seek financial orders from the Scottish divorce court. There is no need positively to ask for a dismissal of financial claims. If they are not made and raised before the divorce, there are deemed to be no claims.

I've had the benefit over many years of speaking with Scottish lawyers and understanding some of the many differences. I confess I had not come across this before, hence bringing to wider attention. We were told that one substantial London firm, unnamed, had not responded in time and their client had significantly lost out.

It is yet again a stunning lesson in dealing with international cases always very quickly and to obtain local advice from local specialists.

There are many other differences. We may well all be part of the United Kingdom. But Scotland derives its law in quite significant part from French influences because of history. England and Scotland are very different in quite crucial ways in the family law dimension. Yet there are many families with connections in both countries. Whenever such a case arises, obtaining local advice in the other country from a specialist is fundamental, and as I now learn, to do so quickly.

No one knows what will happen with the Scottish referendum and whether 700 years of combined history will be severed. I myself personally hope it is not. But Scotland in the family law context is distinctly a very different country to England.

David Hodson is a Partner at The International Family Law Group LLP. He acts in complex family law cases, often with an international element.  

He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and chair of the Family Law Review Group of the Centre for Social Justice.

David is the author of a new major reference work, The International Family Law Practice as well as A Practical Guide to International Family Law (Jordan Publishing, 2008). He can be contacted on dh@davidhodson.com.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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