By Denise Laverty

NO-FAULT divorce. Is it a pipe dream or a simpler way to exit a marriage past its sell-by date? Definitely the latter.

From April 6, no fault divorces will be available to couples who wish to part ways – but only in England or Wales. The good news is that people living in Scotland may also be able to divorce in this way.

Which country you can get divorced in depends on jurisdiction. This is a complex area of family law and the rules have changed post-Brexit. Just because you live in Scotland or somewhere else in the world doesn’t necessarily mean that you cannot get divorced in England. Similarly, just because a marriage took place in England does not necessarily mean that you can get divorced there. Some people may even have a choice.

Whether there is any benefit in divorcing in England rather than Scotland depends on your individual circumstances. In England, the divorce process is a standalone action. Divorce can be applied for (and sometimes granted) before you have agreed how your assets are divided. You can apply to the court at a later stage if you can’t agree how to divide the assets.

In Scotland, the divorce process is only a standalone action if you have already agreed how the assets should be divided.

In some cases, there is a significant difference in terms of the financial outcome. In December 2021, a judge in London ordered Sheikh Mohammed bin Rashid al-Maktoum, the emir of Dubai, to pay a £554 million divorce settlement to his former wife. This is believed to be the largest divorce settlement secured in the UK.

She had undoubtedly taken legal advice on where to divorce and had chosen London because of the more favourable outcome it would give her. Her divorce settlement affirms London as the “divorce capital” of the world.

For most people these sums are incomprehensible, but it is not only the supremely wealthy whose outcome may be different. The matters that the courts in England consider when deciding how assets should be divided are different to those in Scotland. In some cases, the outcome may be similar but with others it could lead to a substantial difference in the settlement.

Anyone considering a divorce should take legal advice at an early stage. There is evidence of an increase in clients looking for advice; people who are "divorce curious" – not yet separated but wanting to know the potential consequences if they did make that decision.

Points to raise include exploring whether there is a choice of jurisdiction and, if so, what the potential financial outcome could be depending on which country the divorce is pursued.

The no-fault divorce process may be an attractive one on the face of it, but even if divorcing in England the wider and financial implications of doing so should be considered before taking that step.

Denise Laverty is a Partner in the Family Law team at Gilson Gray