This article was originally published in Legal Women.
What is distinctive about Scotland's divorce laws in comparison to that of England and Wales?
The range of outcomes is generally not as broad in Scotland as it is in England and so it is often not worth the risk of going to court for financial cases. The parameters that you’re working within are relatively narrow, the cost is significant, and we tend to not be awarded expenses in family cases in Scotland, so that really acts as a deterrent to litigation.
As in all jurisdictions, cost is a significant factor which needs to be borne in mind.
For most people, the reality is that it is a constant balancing of cost vs benefit. It’s about having regular commercial discussions with clients about their options saying, ‘Okay, these are your options, but it’s likely to cost X … and the risks are X, Y, Z – and so we have to weigh this up. Is it worth it for you to take that risk? How important is it for you to pursue this particular argument? Or should we focus on these other arguments instead?’
Alternative dispute resolution
I think with very few exceptions, court should really be a last resort in family cases. I think very few families ever truly recover from a litigated divorce. Sometimes, people talk about mediation as a softer easy option. It is not the easy option. In some ways, it’s more difficult because you have to sit down and work through things with the one person that you really don’t want to talk to sometimes. However, if you can get through that and get to the other side, you stand a much better chance of being able to move forward as a family in some way; you can still attend your children’s graduation ceremonies and weddings without creating this horrible awkwardness that adult children sometimes feel in these situations.
The motivator is to try and avoid the cost and the risks of litigation as you have no control over the outcome if you go into court! By contrast, in mediation or collaborative law, you’re actively working towards an agreement in which you are both stakeholders, you are both party to all those discussions, nothing substantive happens without your presence and you are engaged from start to finish. Nobody makes a decision for you; you make the decision together.
I also think there has been a change in people’s willingness to have that fight. You know, I do genuinely believe that more and more people are trying to find a better way to divorce. Far more clients are now coming to me and saying, ‘I really don’t want to go to court. I really don’t think that’s best for the children’. I don’t know how much of that is because I attract that type of client because I’m forever telling people that I don’t think court is the right answer, but I certainly have noticed an increase in those types of inquiries.
The notion of the modern family includes cohabitants
Cohabitants in Scotland do have some rights, but they are not as extensive as those of spouses and they are not automatic. They have to be claimed and the options available are more restrictive than the options available to spouses but I think, compared with a lot of countries across the world, we’re actually quite good in that (in Scotland) at least our cohabitants do have some rights, but it’s certainly something that requires some updating and is currently under review.
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