No fault divorce- what is it and should I hold off starting divorce proceedings in order to wait for it?

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You may have seen a lot in the press and on social media recently about being able to obtain a divorce on a “no fault basis” from April this year. The previous system of blaming the other party for the breakdown of the marriage citing their adultery or unreasonable behaviour, or having to wait until you have been separated for a certain period of time will no longer apply. The introduction of a truly no fault divorce is something that as Family law practitioners we have been calling for for many years, it removes the need to blame the other partner and will allow a couple’s  divorce be less acrimonious. It is a long awaited positive and progressive step in the field of family law and therefore very welcomed indeed. However, before we celebrate too much those of us living in Scotland need to be aware that the ‘no fault’ divorce is only being introduced for people who divorce in England and Wales.

I live in Scotland -does this mean that I can’t divorce in England?

Not necessarily. The laws on where someone can actually get divorced are based on what is known as jurisdiction. Jurisdiction is a complex area of Family Law and the rules on jurisdiction i.e. the place where somebody can get divorced, have changed post Brexit. Just because you live in Scotland or someone where else in the world doesn’t necessarily mean that you cannot get divorced in England. Similarly just because you may have got married in England does not necessarily mean that you can get divorced there. For some people there may be a choice- England or Scotland.

Does it really matter where I get divorced?

There is no right or wrong answer to this and it very much depends on your individual circumstances.  In some cases there is a significant difference between divorcing in England or Scotland in terms of the financial outcome. The process is also different. In England the divorce process is a standalone action and can be started before there is any agreement on how a couple’s assets are divided. The divorce can be applied for (and sometimes granted) leaving a couple to apply to the court at a later stage if they can’t agree how to divide the assets. In Scotland the divorce process is only a standalone action if it has already been agreed how the assets should be divided. If an agreement on that cannot be reached then the divorce process involves one action asking the court to make decisions on how the assets are divided and to grant the divorce itself.

Will it make a difference to my financial settlement?

The short answer is that yes it could but again it depends on your individual circumstances. In December 2021, a  judge in London ordered Sheikh Mohammed bin Rashid al-Maktoum, the emir of Dubai, to pay a £554 million divorce settlement to his former wife, Princess Haya which is believed to be the largest ever divorce settlement secured in the UK.  Haya had been able to secure the jurisdiction for her divorce in England undoubtedly because of the more favourable outcome that this would give her. There is a reason why London has been dubbed “the divorce capital” of the world!

For most people these sums are incomprehensible but it is not only the supremely wealthy whose outcome may be different. The matters that the courts in England and Wales take into account when deciding how the assets should be divided is different to the matters that courts in Scotland take into account. In some cases the outcome may be the same or similar but in other cases it could lead to a very substantial difference in the outcome.

How do I know then whether I have a choice to divorce in Scotland or England, and, if I do have a choice, where to divorce?

For anybody considering a divorce I would always recommend that you take legal advice at an early stage I have seen an increase in clients coming to me for advice who are ‘divorce curious’, they haven’t yet separated but are wanting to know what the potential consequences would be if they do make that decision. Make sure that the legal advice includes considering whether there is a choice of jurisdiction and if so that your lawyer can discuss the potential outcomes depending on which country you divorce in. The no fault divorce process may be an attractive one on the face of it but even if divorcing in England is an option consideration of the wider and financial implications of doing so should be considered before  taking that step.

If you would like further information regarding the topics discussed in this blog, please contact:

Denise Laverty  by email: dlaverty@gilsongray.co.uk or by phone: 07841 921 985 / 0141 370 813

You can also visit our Family Law Team page by clicking here.

Denise Laverty is a partner in the family law team at Gilson Gray LLP. She is qualified in English and Scottish Law, has over 30 years’ experience of advising clients on divorce and frequently acts in cross border divorce cases. She is often consulted by other firms to give advice on divorce jurisdiction.

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