December 2017

Wives may be worse off under scots divorce law according to legal experts

Consensus Collaboration Scotland (CCS), a network of lawyers, family consultants and financial experts specialising in out of court divorce settlements, claim wives may be financially worse off under Scots divorce law compared to England, despite the system overall being deemed ‘fairer’. With divorce rates remaining high - 42% of marriages end in divorce and 34% of married couples divorce before their 20th anniversary - the division of assets following a divorce can have far reaching consequences for both parties.

Denise Laverty from BTO Solicitors LLP, a member of CCS, an accredited specialist in Scots family law and an English family lawyer, 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. This can benefit wives in England in several ways. For example, if the family home was bought by the husband prior to marriage and is in his sole name, under English law, a court could order that this be transferred to the wife. In Scotland, unless that house was purchased prior to marriage for use as the family home, then it would not be considered as matrimonial property.

Another key difference is that in Scotland, the ‘pot’ of assets is usually shared equally unless there are special circumstances. In England, the first thing a court will consider is the welfare of any child of the family under the age of 18, which can mean that the lion share will go to the wife as the primary care giver.

There are also disparities in the law surrounding maintenance which often favours wives in England. In Scotland, aliment (the Scottish term for maintenance) is unlikely to be awarded for a period of more than three years, whereas in England, it is possible to obtain a lifetime maintenance award.

The way pensions are divided also differs. Under Scottish law, pensions are treated as a capital asset and, usually, the husband and wife will either offset the capital value of the pension against another asset, or a pension share will be agreed or ordered by the court. Under English law, whilst both of these options are also available, there is also the possibility to divide the pensions in a way that equalises the income they will produce. As the husband often has the larger pension pot, this additional option in England can help to provide better financial security for the wife.”

Despite greater provision for the wife and children under English divorce law, many Scottish family lawyers feel that the Scottish system is fairer, particularly for people who have accrued wealth before marriage or through an inheritance.

Mrs Laverty continues: “The Scottish system is more prescriptive with a clearly defined framework both for how matrimonial property is identified and valued and how it should be divided. In England, the system for dividing assets is far more complex, with more discretion available to the court. This makes it more difficult to provide English clients with advice on the likely outcome if they put matters in the hands of the court. There are also regional disparities in England, particularly in relation to maintenance. Such awards tend to be more generous in London compared to the regional courts, particularly those in the North of England.”

The challenge of achieving a settlement in Scotland that works for individual families and one which prioritises the children, could account for the rise of collaborative divorce settlements in Scotland. Earlier this year, CCS released the findings of a report showing a clear rise in collaborative divorce rates in Scotland over the last decade. According to the study, ¼ of all scots family law firms are handling double the number of collaborative divorces when compared to 2007.

Mrs Laverty concludes: “Naturally, the best way to avoid the uncertainty, expense and acrimony of a court action, is to try to reach an agreement out of court. As awareness of CSS increases, we are seeing more couples and families benefitting from the collaborative process. During the process, couples have access to financial planners and family consultants who, together with collaborative lawyers, help the couple to agree an out of court divorce settlement that prioritises the needs of their family. This is often a less stressful, less confrontational and a cheaper way to part ways. Importantly, it allows the couple to make the decisions rather than a court of law. We have found that couples who use collaboration also tend to find it easier to continue to co-parent their children after their separation/divorce.”

Consensus Collaboration Scotland has issued some additional reasons why separating couples with children should consider a collaborative process:

Minimises conflict by conducting all discussions in a non-confrontational, respectful manner, giving each person time to raise their concerns and issues;

  1. Helps you put your children first by ensuring their well-being is a key priority;
  2. Support from family consultants throughout the process minimises the emotional damage of separation;
  3. Financial specialists help you understand the options available so you can make informed decisions and good economic choices for your children’s future;
  4. Gives you control over decision making through supported discussions, rather than leaving it to a judge.

If you’re considering an alternative to a court based divorce, contact a local collaborative professional for advice and information.

Find a Professional to find out how to separate and divorce without confrontation.

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