The Cheryl and Ashley Cole divorce - how it would differ in Scotland...
Posted: Friday 3 September 2010
Cheryl and Ashley Cole have hit the headlines again this week as the first stage of their divorce is granted at the High Court. It is worth noting for those with an interest in matters north of the border that Scottish law has its own legal framework for divorce which, in some respects, differs significantly from the position in England. So, if Ashley and Cheryl had lived in Selkirk rather than Surrey not only would their divorce proceedings be different but so would the likely final settlement.
There are several key differences in the way divorces are conducted north and south of the border.
In Scotland a decree of divorce is granted and the couple are divorced from that date. In England however it is more complicated two stage process. First ‘decree nisi’, the court’s approval of the divorce in principle, is granted, followed by‘decree absolute’, the actual granting of the divorce. These terms don’t exist in Scotland.
In England, divorce proceedings can be raised and decree nisi obtained, before the couple resolve financial matters, including division of their property. Not so in Scotland. Here, all financial claims must be dealt with before decree of divorce is granted. Once a couple are divorced in Scotland, neither spouse can make any further claim on assets held by the other.
So, in Scotland, separating couples will generally try to agree financial matters prior to divorce proceedings being raised. But if negotiations fail, either spouse can raise divorce proceedings and ask the court to decide on financial matters.
Most importantly, Scotland and England also have very different rules when it comes to dividing matrimonial property. In broad terms, Scots law limits the property to be divided between the spouses to that which has been acquired after the date of marriage and before the date of separation (not the date of divorce).
So, in Scotland, if Mrs Cole made another commercial for L’Oreal after separation and received a cheque for that work this would not be counted as “matrimonial property” and her estranged husband would have no claim. This would not necessarily be the case in England.
Equally any money earned in Girls Aloud before she met her Husband could not be counted in any divorce negotiations.
In summary, if the case was heard under Scots law rather than English the likely split of Mr and Mrs Cole’s reported £35 million fortune could be very different.
If, for some reason, Mrs Cole were unable to continue working and earn a living, it is unlikely that she would qualify for maintenance payments after divorce in Scotland but English law could possibly take a different view.
Where a divorce action takes place can make a huge difference to the outcome. English law clearly applies to the Cole case. However, with an increasingly mobile population ‘cross border’ issues crop up with increasing regularity when spouses are separating.
Getting expert legal advice at an early stage from a family lawyer is an important step to navigating what can be a legal minefield.
Anna Forsyth is an Associate with the Morton Fraser Family Law team.
