10 December 2018 - Article
Scottish independence is just a vote away come 18 September. The debate is getting more heated by the day. But, it is a little known fact that in divorce and family law Scotland has a long history of being independent of England in its approach. Indeed, some of the most significant areas in which England and Scotland are as one are those imposed on the United Kingdom as a whole by the European Union. And we are all up in the air about our future in Europe. A symbol of our differences down the ages is Gretna Green. As long ago as 1754 a tightening of the requirements for weddings in England led to teenagers (especially) marrying there without the need for parental consent. The same law that led to those runaway marriages also ended the concept of a common law marriage in England, but not in Scotland. Despite public misconceptions there is no such thing as a common law wife in England. As a result on separation English cohabitants have none of the legal rights of their Scottish cousins. Numerous Law Commissions have investigated and reported on cohabitants' rights, but Parliament has done nothing. The Scots treat a pre-nuptial agreement as a contract binding on consenting adults. The English have dithered for years over whether to make them so. This vacillation continues beyond the Law Commission Report recommendations of February 2014. Parliament has not acted and, whilst doing a good job, our judges have probably gone as far as they can in clarifying the law for the general public. Scotland has long had the overriding principle that matrimonial property be shared fairly between a divorcing couple. Matrimonial property comprises all assets acquired from the date of marriage to the date of separation, excluding gifts and inheritances, and the family home whenever acquired. Having long had a glass ceiling holding claimants' awards to base level the English judiciary smashed through it in 2000 and brought in equal asset division, often now of everything whenever acquired. This has led to England in general and London in particular being trumpeted as the divorce capital of the world. In almost all cases spousal maintenance in Scotland ends three years after a divorce. In England joint lives' maintenance orders are common, especially in London, but less so elsewhere. The Family Justice Council is looking into whether guidelines should be published to encourage uniformity of approach throughout England. We do agree on at least one thing: as between England and Scotland (and the rest of these islands, including the Channel Islands and the Isle of Man) a divorce must take place where the couple last lived together. But, apart from that, whatever happens on 18 September in family law terms we each regard the other already as very much another country.