Scotland v England - Which Holds Sway in Cross-Border Divorce?

The law concerning post-divorce financial maintenance is very different in Scotland than it is in England. The national divide was strikingly highlighted by one case in which a husband launched divorce proceedings north of the border but his wife successfully applied to an English judge for financial provision.

Three months after the husband issued a writ of divorce in Scotland, the wife issued her maintenance application in London. The couple had spent almost all their 17-year married life in Scotland but a family judge accepted that she had become habitually resident in England since their separation.

The wife was awarded £2,500 per month in interim maintenance, pending finalisation of the divorce, and the husband was ordered to contribute another £3,000 per month towards her legal costs. Although the husband had experienced financial difficulties, the judge found that he had access to a family trust fund worth £3.5 million, as well as a substantial inheritance from his mother.

In challenging that ruling before the Court of Appeal, the husband’s lawyers pointed out that, in Scotland, inherited wealth and beneficial interests in discretionary trust funds are left out of account when assessing the value of marital assets. North of the border, maintenance is also only generally payable for three years following a divorce. In those circumstances, it was submitted that the wife had effectively been rewarded for moving from Scotland to England.

The Court rejected arguments that the English judge had no jurisdiction to hear the wife’s application on the basis that the Scottish proceedings had been issued first and that the courts there were already seized of the maintenance issue. However, the husband was granted permission to appeal on other grounds.

The husband had an arguable case that Scotland was the more convenient forum for the wife’s maintenance application to be heard and that European rules concerning cross-border divorce also militated against intervention by the English courts. The husband was also granted leave to argue that the judge was wrong to find that he had unhindered access to the trust fund. No date was set for the full hearing of the husband’s appeal.