What Family Lawyers Can Learn from Both Sides of the Border

Family law in England and Wales is entering one of its most significant periods of potential change in half a century. On 5 June 2026 the Ministry of Justice launched ‘A Fairer End to Relationships’, a consultation covering financial remedies on divorce, financial provision for cohabitants on separation, and inheritance provision for cohabitants on death. It builds on the Law Commission’s December 2024 scoping report, which concluded that the law governing finances on divorce – unchanged in its statutory form since the Matrimonial Causes Act 1973 – no longer gives parties a cohesive framework for fair, sufficiently certain outcomes.

Reform of this scale invites comparison. At a recent roundtable, family law specialists from Hugh James and Brodies brought together practitioners from Wales and Scotland to test where each jurisdiction might learn from the other. Scotland has lived with a structured, codified approach to matrimonial finances and a statutory cohabitation regime for two decades. As England and Wales considers its own path, it is worth asking what has, and has not, been absorbed from that experience.

The two systems are more different than many clients, and many practitioners, appreciate. A short journey across the border can produce a materially different financial outcome, so understanding those differences matters in practice, not just in theory.

Structure or flexibility: the financial remedies question

The starkest contrast between the two systems has always been the treatment of finances on divorce. In Scotland, the concept of matrimonial property provides a relatively defined framework: assets acquired during the marriage up to the ‘relevant date’ (broadly, the date of separation) are identified and valued, with equal sharing the starting point unless special circumstances justify departure. That relevant date creates a clear dividing line between matrimonial and post-separation property and can make the timing of separation strategically important where bonuses, shares, pensions or business interests are in play.

England and Wales have instead relied on the broad discretion in section 25 of the Matrimonial Causes Act 1973, refined through case law into the principles of sharing, needs and compensation. Needs are often the practical starting point: equality remains an important yardstick, but the court retains considerable latitude to depart from it to achieve fairness on the facts.

The contrast is one of structure versus flexibility. Scotland offers a more defined and predictable framework. England and Wales offer greater judicial discretion to achieve what the court regards as a fair outcome on the particular facts. That flexibility can prevent unfairness where equal division would leave one party unable to rehouse or meet income needs, but it also makes outcomes harder to predict and settlement parameters more difficult to define.

Neither system has the edge. But for a client with ties to Scotland who has specific concerns about inherited wealth, maintenance exposure, or wants a swift and final resolution, the choice of jurisdiction can have a substantial impact on the outcome of finances on divorce.

The Government’s proposed ‘codification-plus’ model – the second of four options the Law Commission put forward – responds directly to that uncertainty. It would codify the sharing and needs principles, adopt the Supreme Court’s definitions of matrimonial and non-matrimonial property from Standish v Standish, and introduce a three-stage hierarchy for assessing needs, starting with the welfare of any children. It is a partial move toward the predictability Scots law has offered for forty years, without adopting Scotland’s harder-edged default of equal sharing of a defined matrimonial pool.

Timing, sequencing and financial finality

The two systems also diverge sharply on when a marriage legally ends relative to when its finances are resolved, with real consequences for clients. In Scotland, financial matters are generally resolved before decree of divorce, because the right to seek financial provision is ordinarily lost once the marriage ends. Once that is dealt with, the divorce itself can be comparatively quick: a simplified divorce can be completed in around eight weeks, and even where there are children under 16 the process may take approximately ten to twelve weeks. The underlying principle is autonomy: if two informed adults have decided the marriage is over and dealt with the consequences of separation, Scots law does not generally require them to remain married for a lengthy further period, and decree of divorce will usually bring financial claims to an end.

England and Wales follows a different model. No-fault divorce has removed the need to assign blame, but it includes a mandatory minimum period of twenty weeks between issue of the application and the application for a Conditional Order, with a further six weeks before a Final Order can be made. The policy intention is to allow time for reflection and practical planning, but a divorce can still take longer than in Scotland even where both parties agree the marriage has ended. There is also a critical difference in legal effect: a Final Order dissolves the marriage but does not automatically dismiss financial claims. Those claims remain open, potentially indefinitely, unless resolved and formally dismissed by a separate financial order.

That is not a mere procedural curiosity. England and Wales has made divorce more accessible, including through an online application process, but that has created a specific risk: a party can complete the legal end of a marriage and reasonably believe the matter is closed, without realising their financial relationship with their former spouse remains entirely open. Clients have not always grasped that the two processes are separate. Scotland’s tighter coupling of financial resolution and decree removes that risk almost by design, at the cost of slowing down contested cases. The current consultation, focused on the content of financial remedies rather than the procedural relationship between divorce and finance, does not address this sequencing gap – a point at which Scottish practice offers a lesson English and Welsh reform has not yet taken up.

Cohabitation: reform at last, but only part of the Scottish lesson

Cohabitation is where the two systems have diverged most sharply, and where the consultation represents the most significant proposed change. Scotland has had a statutory cohabitation regime since the Family Law (Scotland) Act 2006, allowing a cohabitant to seek a capital award reflecting economic advantage, or disadvantage, arising from the relationship, subject to a strict one-year limitation period following separation. It is a real remedy, but a narrow and often difficult one: economic advantage and disadvantage can be hard to define and quantify, and outcomes under the 2006 Act remain more variable than the existence of a statute might suggest.

In England and Wales, cohabitants separating today must still rely on general property and trust law. A person seeking an interest in a home held in the other party’s sole name generally has to establish a common intention to share beneficial ownership and prove detrimental reliance on it – an exercise that can turn the end of a personal relationship into detailed, adversarial civil litigation over financial contributions, conversations and conduct. The Government’s consultation acknowledges that the ‘common law marriage’ myth, still believed by around 47% of the public, leaves many of the estimated 3.5 million cohabiting couples in England and Wales unaware of how limited their protection actually is.

The proposed cohabitation framework borrows several features that Scotland pioneered: a defined qualifying relationship (three years living together, or living together with a shared child), a needs-based rather than automatic entitlement, and a strong emphasis on achieving a clean break. But it also seems to have absorbed the lesson of Scotland’s difficulties in application. Rather than replicate an economic advantage and disadvantage test that practitioners on both sides of the border regard as conceptually elusive, the Government proposes a simpler starting point: each person keeps what they legally own, with the court departing from that only to meet defined needs, assessed more narrowly than on divorce and never more generously than would be available to a divorcing spouse. It is a deliberate attempt to avoid Scotland’s continuing evidential and valuation difficulties while still giving cohabitants a statutory route that does not presently exist.

One area where the consultation does not fully mirror Scottish practice is the treatment of periods of pre-marital cohabitation. Pensions are frequently the most significant matrimonial asset, and the Fair Shares Project^[1] research found that only 11% of divorcees with a pension not yet in payment had made an arrangement for pension sharing on divorce, with women (3%) far less likely than men (14%) to report sharing their pensions. The consultation invites views on how pensions accrued during the marriage should be treated and on whether pre-marital cohabitation should count towards the length of a marriage for these purposes but stops short of adopting a settled position. Scots law has long grappled with this question through its relevant date mechanism, which forces an early and often contested assessment of what falls inside the matrimonial property pool. Scotland’s statutory framework creates a clear and durable boundary around non-matrimonial property. In England and Wales, that boundary can be eroded by the court's wide discretion to take such assets into account where the needs of either party require it; the distinction between matrimonial and non-matrimonial property is highly fact-sensitive and, critically, not a hard dividing line. For couples who cohabited for a substantial period before marrying, particularly where pension contributions were made throughout, the Scottish experience of drawing that line may offer more practical guidance than the consultation currently reflects.

What more could be learned

The clearest lesson from comparing the two systems is that neither jurisdiction has all the answers. Scotland’s certainty can tip into rigidity; its cohabitation regime, while real, remains difficult to apply consistently. England and Wales’ discretion can tip into unpredictability, and its accessible, largely administrative divorce process can create false confidence that a Final Order has resolved finances when it has not.

The consultation shows that some of Scotland’s structural thinking – on codification, needs-based cohabitation remedies and clean breaks – has found its way into the Government’s proposals. What has not yet been carried across is Scotland’s sharper mechanism for fixing the boundary of matrimonial property, particularly as it bears on pensions and pre-marital cohabitation, its stronger presumption in favour of maintenance and financial finality, and its tighter coupling of divorce with the resolution of finances. As the consultation runs to 14 August 2026, family lawyers advising cross-border families, and shaping the professional response to it, have a genuine opportunity to press for those remaining lessons to be reflected in the eventual legislation, rather than treating this as a purely domestic reform exercise.

Reform to the general law is one thing. For clients with genuine connections to both jurisdictions, the choice of system is a live, practical question. Where a party is habitually resident or domiciled in Scotland, or the parties were last habitually resident together there, Scottish jurisdiction may be available alongside, or instead of, proceedings in England and Wales. In cross-border cases – for example a couple who married in England, spent most of the marriage in Scotland, and now hold property or live in different places – both systems may genuinely be open, and the decision on where to issue can materially affect the outcome. This is because the structural differences described above translate directly into outcomes.

Scotland's defined matrimonial property pool, and its relevant date mechanism, tend to give clearer and more durable protection to pre-marital wealth, inheritances and gifts than the more fact-sensitive English and Welsh approach, where such assets can still be drawn into account to meet needs. Neither system wins on every point, but the right choice can differ significantly from client to client depending on what they own, how they came to own it, and what they are most concerned to protect.
The practical lesson for practitioners is to treat the jurisdictional question as urgent wherever a client has a genuine connection to both systems, rather than assuming England and Wales is the default. Early advice matters, and where appropriate so does working alongside a trusted Scottish practitioner who can advise on the detail of the 1985 Act and Scottish procedure, so that the client's choice of system is made deliberately, not by default.

A short journey across the border can produce a very different financial outcome. Until the outcome of the Ministry of Justice’s consultation, getting the jurisdictional decision right for each individual client is one of the most valuable things a family lawyer can do for a client in this situation.