Scottish divorce....sort of

makeitstop

Hi all,

I am looking for advice on Scottish divorce law.

If a married couple lived all their "married" lives in Scotland, but one is now outside Scotland and seeking a divorce, can any UK solicitor deal with the divorce proceeding, or is there something in Scottish law that requires Scottish legal representation specifically.?

I am aware that the people to discuss this with are the solicitors themselves, but if anyone has knowledge on this, I'd appreciate hearing about it.

Many thanks.

Rubik

If the divorce is applied for under Scots law, then only a solicitor(s) qualified in Scots law would be able to provide legal advice and assistance. Same goes for if the divorce is applied for under English/Welsh law - the parties would have to have the appropriately qualified solicitors. Most of the big London and Edinburgh firms have dual qualified solicitors in the event of a jurisdiction "battle".

Scotland is a separate legal jurisdiction to England & Wales (a s is Northern Ireland).

makeitstop

Thanks for this Rubik, most useful.

I had no idea of the implications, but it looks like it could potentially be more complicated than it needs to be.

If anyone else has any information or advice surrounding such a situation, I would appreciate hearing it.

Rubik

If the marital property is in Scotland, and one party is remaining there, it would make sense to divorce under Scots law.
Is this about your situation?

Silvertabby

One of the biggest differences (to the best of my knowledge) would be how pension benefits are calculated in the event of a pension sharing order.

Under Scots law, only the pension accrued since the date of marriage is up for grabs, whereas under English/Welsh law it's the whole 'pot'.

makeitstop

Rubik wrote: »

If the marital property is in Scotland, and one party is remaining there, it would make sense to divorce under Scots law.
Is this about your situation?

I see, interesting.

No, this is not about me, it's a relative.

makeitstop

Silvertabby wrote: »

One of the biggest differences (to the best of my knowledge) would be how pension benefits are calculated in the event of a pension sharing order.

Under Scots law, only the pension accrued since the date of marriage is up for grabs, whereas under English/Welsh law it's the whole 'pot'.

Thanks for the reply silvertabby.

The pension thing is interesting too, although from what I understand, the plan is not to bring that into the question Re: financial settlement.

Of course, things can change, as it's early days yet.

mgdavid

makeitstop wrote: »

Thanks for the reply silvertabby.

The pension thing is interesting too, although from what I understand, the plan is not to bring that into the question Re: financial settlement.

Of course, things can change, as it's early days yet.

do you know how they plan to achieve that? It's my understanding that ALL financial assets including pensions have to be declared on Form E and have to be accounted for in any financial settlement. Even if the two parties come to an amicable financial settlement and present it to court, they may well ask questions about obvious gaps i.e. if pensions are omitted.

makeitstop

mgdavid wrote: »

do you know how they plan to achieve that? It's my understanding that ALL financial assets including pensions have to be declared on Form E and have to be accounted for in any financial settlement. Even if the two parties come to an amicable financial settlement and present it to court, they may well ask questions about obvious gaps i.e. if pensions are omitted.

When i say "not bring that into the equation" i mean that one does not intend to seek gain from the others pension.

I understand full disclosure is necessary. However, what is available for one to make claim on, does not have to be sought in a settlement if that is agreed by both parties.

Rubik

Yes it's possible for a couple to agree to not include a pension in the financial settlement. It makes sense to do this if the pension value is low - pension sharing costs approx £2-£3 k per pension.

In Scotland there is a formula for apportioning the pension. The value of the pension is divided by the total number of years contributions were made to the pension and that figure is then multiplied by the number of years contributions were paid into the fund during the marriage. Once the value of the fund apportioned to the marriage has been determined it is shared "fairly," usually 50:50.

If divorcing under English/Welsh law, it may be possible to offset the share of the pension against another assets, such as equity in the FMH, or savings.