Happy Burns Night
25 January marks Burns Night which is the annual celebration of Scotland’s national poet, Robert Burns. Robert was born in Ayrshire in 1759 and his poems have survived as testament to the proud literary heritage of Scotland. His poems include “Auld Lang Syne” which is sung by many people (in and outside of Scotland) when bringing in the New Year.
As we all know following the referendum last year Scotland is not independent and remains part of the United Kingdom. Please see our previous blog on this issue https://www.family-law.co.uk/blog/scotland-votes-independence-family-law-perspective/. It is important from a family law perspective to understand that Scotland does have its own set of laws.
The difference in the laws between Scotland, England and Wales on divorce, for example, can be quite significant. Usually the real relevance of the jurisdiction you choose to divorce in relates to the financial issues between you and your ex-partner and how those are resolved. In England and Wales the court would look at the factors set out at Section 25 of the Matrimonial Causes Act. A link to that act can be seen here http://www.legislation.gov.uk/ukpga/1973/18/section/25. That is not the case in Scotland and the position in relation to certain issues, for example, spousal maintenance (i.e. maintenance paid from Husband to Wife or vice versa) inheritances and so on can be quite different.
In 2006 Scotland also passed an act in relation to cohabitants which means that living together in Scotland could have different implications to living together in England. In England the position is that the starting point will be that upon separation any assets in sole names will remain the assets of the party in whose name they are in and any joint assets should be shared equally. There are certain circumstances in which this may not be the case but that is outside the remit of this blog and if you have any questions about the law relating to cohabitees in England and Wales please contact a family law specialist at James Maguire & Co.
What is the relevance of this?
The important thing to note here is that if you are considering a move to Scotland you should consider the legal implications of this from a family law perspective as it may open the door for either one of you to start proceedings in Scotland should you separate. Also it would mean a change to any children’s habitual residence and the courts of Scotland would have to deal with any ongoing issues regarding children.
Similarly even if you are currently in England and Wales but have lived in Scotland or have connections to Scotland (or your partner does) you should consider carefully whether you may have the option of starting proceedings in different jurisdictions and, if so, where you wish to start any proceedings for divorce. You should take expert family law advice in each separate jurisdiction before you make the decision but you should be aware that it could be time critical and if possible delay should be avoided.