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23 NOV 2012

Lucia Clark on Scottish Family Law: To English family lawyers - please be less polite!

Lucia ClarkThis is a heartfelt plea to English matrimonial solicitors - please, please, be less polite. Take a hint from Scots family lawyers - be rude!

Or more accurately (but in less of a soundbite) - please carefully consider when you should apply the Pre-Application Protocol and follow the usual good practice before issuing divorce proceedings, and when (for very good reason) you should proceed in a different way.

The Pre-Application Protocol has the aim of promoting negotiated and mediated settlements - which are without doubt laudable aims. To encourage this, parties are directed to attend a meeting providing information about mediation before issuing an application for financial orders on divorce. Whether that is a good means of achieving those laudable aims is quite another matter, but that's a discussion for another day. For now, what I want to note is that there are exceptions to this rule, one of which is that the application is to be made without notice to the other spouse.

Resolution (the association of English family lawyers) also has several Guides to Good Practice, and lawyers who are Resolution members agree to adhere to these. These Guides state that it is good practice to send a letter to the other spouse or their solicitor before starting or serving Court proceedings for divorce. Many solicitors take this further, and it is standard practice to send a draft of the divorce petition to the other spouse, to check whether they will agree not to defend the divorce proceedings. In that way, petitions can be kept "amicable", as the receiving spouse has the opportunity to object to particular allegations in the petition (say, relating to unreasonable behaviour).

However, the Good Practice Guide then immediately goes on to state that there are various circumstances in which the recipient spouse should only be made aware of the Court proceedings once these have been issued and at the time the petition is being served - one of which is where there are potential proceedings in another jurisdiction.

All well and good, and I expect that when solicitors are dealing with a situation where one or other spouse is living in another country (France, the USA, the UAE...) they are well aware of the potential jurisdiction conflict and act accordingly by ensuring that they have raised proceedings in the English Courts and so claimed jurisdiction before alerting the other spouse to the imminent Court application.

In my experience, things more often fall down when the countries involved are England and Scotland, rather than somewhere further-flung. Some English solicitors seem to forget that (regardless of the outcome of the future independence referendum) Scotland is a separate country, with an entirely separate legal system and quite different divorce procedures. Scottish lawyers know nothing of the Pre-Application Protocol, and there is no practice here of sending a draft divorce writ to the other spouse for approval.

This article was prompted by yet another case referred to me in which one spouse was resident in England, and the other spouse in Scotland (and so divorce proceedings could be raised in either place). The polite English solicitors advised the other spouse's Scottish agents that they intended to issue English divorce proceedings, and sent on a draft of the petition. They failed to recognise that they were in a situation of possible jurisdiction conflict, and so were shocked when the Scottish solicitors responded by promptly raising divorce proceedings in Scotland. The English solicitors felt their Scottish counterparts had failed to comply with the Protocol, or were just plain rude - but I would argue that they were just protecting the interests of their client in a potential jurisdiction clash.

Sorting these cases out makes for some interesting work for me. But truthfully, I would rather more English solicitors were aware of the "foreign-ness" of Scotland when it come to divorce, before finding out the hard way.

Lucia Clark is an Associate in the top-ranked Family Law Team at Morton Fraser LLP, and is dual-qualified in Scots and English law. She specialises in complex financial and cross-border cases.  She can be contacted at lucia.clark@morton-fraser.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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