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18/09/2014 By: Sue Brookes
Those in the “no” camp have made it clear that a yes vote today will mean a divorce for Scotland and the rest of the UK and that it will not simply be a trial separation. A permanent separation will inevitably have a huge impact on all aspects of political and economic life, but what impact will it have on the laws surrounding family separation and breakdown?
Although currently part of the United Kingdom, Scotland already has its own divorce laws, which are very different from that of England and Wales. England and Wales is a discretionary system. The court considers all of the issues affecting a family before deciding the fair outcome. It can then make a variety of orders, including transferring assets between partners, regardless of who owns them and where they came from. The court can also order one partner to pay the other maintenance, sometimes indefinitely. The Scottish courts divide “matrimonial” assets accrued during or for the benefit of the relationship and each partner retains “non-matrimonial” assets which were acquired before or after the relationship, or by gift or inheritance. In addition, although the Scottish courts can order maintenance, it is far less likely to do so and it can only usually be paid for up to 3 years maintenance, save in exceptional cases. In many cases, a “yes” vote will not have any impact on the laws governing financial settlements on relationship breakdown in the two countries, which will continue as they are to date.
However, there will be a greater impact in what may be called “international cases”, where more than one country is involved. The United Kingdom in its current form (England, Scotland, Wales and Northern Ireland) is a member of the European Union and a signatory to numerous international treaties, many of which relate to the family. If Scotland becomes a new state, they will be required to apply to and/or negotiate to become members of whichever international organisations it wishes to join. They will also have to work through its position on various international treaties, of which they will not automatically become signatories. Inevitably this process will take time and there can be no guarantee that Scotland will sign up to all of the treaties to which it is currently a member as part of the existing United Kingdom. Unless and until it does so, different rules will apply to the financial settlements which can be ordered by the courts in international cases.
There will also be an impact on the rules specifying where a party can start divorce proceedings, if the parties have connections with both Scotland and England, with parties having far more choice between the two countries than they do now.
The rules regarding arrangements for children where more than one country is involved will also be affected. The Child Maintenance Service (formerly CSA) will no longer deal with cases involving Scotland and there would be a different process for seeking child maintenance and enforcing any payments.
A further example is that it is currently a criminal offence for a parent of a child under the age of 16 to take or send the children out of the United Kingdom without the consent of the other parent. Breaching this rule is a criminal offence, for which sanctions may apply. There are rules governing how the courts must protect a child and bring about a prompt return where a child has been removed from the United Kingdom. Whilst Scotland is part of the United Kingdom, a parent can take a child to Scotland without the other parent’s express consent and he or she will not be committing a criminal offence. However, the position will change if Scotland leaves the United Kingdom, such a step (even a short holiday).
There are going to be many changes if the “yes” vote succeeds and this is only a brief summary of some of the potential impact. For more information, please contact one of the members of our team.
Sue BrookesSenior Solicitorfor Manchester