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Scotland votes no to independence – a family law perspective

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Scotland votes no to Independence.

It is reported that 55% of Scotland voted to remain as part of the United Kingdom. However, it should not be forgotten that they do have their own laws including their own family and child law system.

The family law and divorce system in Scotland is different to our own, particularly in relation to the treatment of non- matrimonial assets on divorce, for example, inheritances and pre or post acquired assets and in relation to the issue of spousal maintenance ie. the payment of monies from one spouse to another on an ongoing basis separate from child maintenance.

If either party to a marriage has a connection to Scotland as well as England and Wales then it is important that they receive specialist family law advice in both jurisdictions to establish whether it would be advantageous in terms of any financial settlement on divorce to issue in one jurisdiction over the other. There can be a time pressure with this as both parties can find themselves competing to claim divorce jurisdiction.

If you have any concerns or questions about divorce jurisdiction where there may be two or more possible countries involved or any other international family law issue please see our international family law page  or contact our office.  There are different rules in relation to divorce jurisdiction depending on which countries are involved and, particularly, depending on whether the relevant countries are part of the European Union or not and the area is complicated.

Children Law in Scotland

Scotland also has its own laws in relation to children. If you choose to relocate with your children to Scotland then this is something which you may want to consider as it is likely that should any dispute with regard to children arise in the future the children will be considered to be habitually resident in Scotland and the family court in Scotland will need to determine that dispute. If you have any questions about child law, child relocation or child abduction then please see our child law page.

Child law in England and Wales is primarily enshrined in Children Act 1989 and the family court has powers to make orders about where a child lives, what time they spend with each parent, whether a child should be allowed to relocate, where a child should go to school, educational issues and so on.  Generally speaking the family court can make a decision about any issue regarding a child’s life where the parents and/ or parties with parental responsibility cannot agree by making either a specific issue order or a prohibited steps order.  However, in most circumstances it is not proportionate or sensible to involve the family court.  Parties are encouraged and (save in exceptional circumstances) obliged to consider mediation as a first option with regard to resolving disputes about children and/ or family law issues.

If a court needs to make a decision in relation to issues regarding any child law issue then it must consider the welfare checklist which includes, by way of example, the wishes and feelings of any child or children, their needs, their age and sex and the likely effect on them of any change in circumstances.

In terms of child abduction it is worth remembering that the unlawful removal from the jurisdiction of a child by a parent can still constitute child abduction. This can often be an area that is misunderstood and a parent left behind can feel there is little they can do to either prevent this happening or to bring the child or children back once they have been taken. That is not the case and urgent family law advice should be sought. There is also support and help available in the UK through Ministry of Justice and Foreign and Commonwealth Office if you are concerned about child abduction. A good source of information on this topic is Reunite. Reunite started life as a parent support network but is now recognised as the leading UK specialist charity specialising in international parental child abduction. Back in 2012 it was reported that the possible loss of UK consular assistance with regards to child abduction was one risk for Scotland if they were to become independent. How far this would have been the case is unknown but it perhaps underlines the importance and need for government support in the area of child abduction.

Family Law & Scotland – Summary

In summary, even with Scotland remaining as part of the UK, the family law system remains different and anybody considering relocating to Scotland or any other country outside of the family law jurisdiction of England and Wales would be wise to consider what impact this could potentially have in relation to potential future disputes about children, divorce and financial remedy jurisdiction including the impact on any pre-marital/ pre-nuptial agreements, post- nuptial or cohabitation agreements.

For specialist advice on any family law related issue contact Maguire Family Law by email: james.maguire@family-law.co.uk or telephone:

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