SCOTLAND Law and Practice Contributed by: Ciara Wilson, Gillian Crandles and Lauren McDonach, Turcan Connell
Recognition of foreign divorces can be refused if one party was not given sufficient notice or was denied an opportunity to take part in the pro - ceedings, or otherwise on public policy grounds. There are no procedural requirements – although parties may seek a declarator of recognition of a foreign divorce if there is doubt as to the recog - nition of the relevant foreign divorce in Scotland. There are limited grounds under which an appli - cation can be made for financial provision fol - lowing a foreign divorce, with the jurisdictional test requiring a connection of the parties to Scotland – eg, habitual residence or domicile. Essentially, the court will apply Scots law and seek to place the parties in the financial position that they would have been in had the divorce proceeded in Scotland. 2.2 Service and Process Service requirements in financial proceedings are the same as for divorce proceedings, as is the process and timeline for financial proceed - ings. 2.3 Division of Assets Court’s Approach The parties are subject to the provisions of the Family Law (Scotland) Act 1985 (the “1985 Act”), which includes a defined concept of matrimonial property providing for fair sharing on divorce – ie, it has no propriety consequences during the marriage. Parties may enter into a nuptial agree - ment to modify the effect of the 1985 Act. The 1985 Act provides a framework for financial provision on divorce. The overriding principle is to ensure fair sharing of the matrimonial prop - erty, which is broadly defined as the net value of all assets acquired by the parties during the marriage, which are still held at the date of sepa -
ration, except assets acquired by way of gift or inheritance from a third party. The fair-sharing principle applies unless there are circumstances justifying a different outcome, such as where the source of the funds used to acquire a matrimonial asset did not derive from the income or efforts of the parties during the marriage. Fair account should be taken of any economic advantage derived by one party from contribu - tions of the other, and of any economic disad - vantage suffered by either party in the interests of the other party or the family. The economic burden of caring for children under the age of 16 should be shared fairly between the parties. Where one party has been substantially depend - ent on the financial support of the other, they should be awarded such provision as is reason - able to enable them to adjust to the loss of sup - port over a period not exceeding three years. A party who is likely to suffer serious financial hard - ship as a result of the divorce should be awarded such provision as is reasonable to relieve them of hardship over a reasonable period. Regulation or Reallocation of Assets or Resources on Divorce The main financial orders courts will make are: • payment of a capital sum; • transfer of property; • payment of a periodical allowance (mainte - nance post-divorce); • a pension-sharing order; and • incidental orders such as the sale of a prop - erty. When making such orders, courts will consider the factors set out in “Court’s Approach”.
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