Although both Scotland and England are part of the UK, Scotland has its own distinct judicial system and its own jurisdiction. Rather than being solely a Common Law system, Scottish law is a mixed system, and it is important to be aware of the differences, especially if you plan to study law in a Scottish institution.
The History Of Scottish Law
In 1707, the Treaty of Union made provision for Scotland to have its own judicial system as distinct from that in England. Historically, Scottish law adhered mainly to the influences and traditions of continental law, however in the 19th century, English laws began to assert themselves. In many ways, Scottish Law has a number of similarities to the law in South Africa with is Roman-Dutch in origin, however at the present time EU legislation has meant that many contemporary laws (especially those relating to consumer protection and commercial law) are valid across the entire UK, however in other fields, there are still clear differences between English and Scottish legislation. Nevertheless, a case which has been heard in a court in Scotland can still be referred to the Supreme Court of the UK.
In Scotland, the courts system consists of three separate courts – civil cases are tried in the courts of session, criminal cases in the court of judiciary and also the Sheriff Courts which are for both civil and criminal cases. In England, on the other hand, the courts system consists of judges who make a decision based on legal precedent. Overall power is held in the Supreme Court of the UK and the decision made there is final.
Scottish Laws Regarding Financial Settlement After Divorce
Just one of the areas in which Scottish Law and English Law differ dramatically is in the field of financial settlement following a divorce. The Family Law (Scotland) Act of 1985 adopts a fair sharing principle which is based on dividing up all total assets, usually in an even 50:50 split. While the financial requirements of both parties and any children is borne in mind, it is not top of the considerations. Spousal maintenance is restricted to just 3 years and it is very unlikely to continue for a long-term period.
Meanwhile, in England, the Matrimonial Causes Act 1973 sets out that the needs of the parties and any children is paramount when determining a financial settlement following a divorce and sharing comes much lower down the priorities list. It is also very possible to obtain a divorce in England but not to address the matter of finances until many years later. Another major difference is in spousal maintenance, with “joint lives” orders being fairly common, meaning that the higher earning partner must pay the other maintenance for life.
Differences Regarding Wills And Probate Law
Another area in which there are considerable differences is in the drawing up of a will in both countries. In England, marriage invalidates any previous will, however in Scotland this is not the case, and in Scotland a will can be signed without any present witnesses, and witnesses can also be beneficiaries, which is not possible in England. Under Scottish law, children and spouses have “prior rights” and therefore cannot be excluded from their inheritance, which again is not the case in England.
Property Law Differences
One of the main areas of difference is in property law and conveyancing, with Scottish solicitors having a larger hold over the housing market than their English counterparts. In fact, in Scotland, solicitors often sell the properties themselves, acting as both legal advisor and estate agent. In England, a contract of sale must be negotiated, signed and then exchanged, in Scotland, several documents called missives are exchanged instead. These missives mean that transactions become binding quite early in the purchasing process, which means the gazumping is less likely to be a problem.
In England, surveys are paid for by the purchaser, whereas in Scotland, the seller deals with this element, and there are also differences in the laws relating to property taxes, with no Stamp Duty being payable in Scotland, but a Land and Building Transaction Tax being payable instead.
Differences between personal injury claims in England and Scotland
Whilst the process for claiming against personal injury is largely the same, there are a few notable differences. In Scotland, injury claims for the most part are successfully handled out of court. In Scotland there are two courts, the Sheriff Court for smaller claims and the Court of Session for more extensive claims. The size and severity of your personal injury claim in Scotland will determine which court is used, in comparison to England where small courts and law firms like Legal Helpline for personal injury claims handle claims of all sizes.
Claims classed as ‘No Win, No Fee’ in England are made under ‘tort’ law, but in Scotland this is called ‘delict’ law. They are fairly similar, but there are subtle differences with the potential to affect your actual claim.
If you’re claiming north of the border, it’s a known fact that personal injury claims aren’t likely to payout 100% of the compensation you’ve been awarded because solicitors there can take up to 30% of your entitlement. For this reason it’s always good to pay close attention to the CFA you sign with the solicitor and it will lay out clearly the % which will be taken.
This is just a brief look at some of the differences between laws in England and north of the border, and while some areas of law are extremely similar, such as employment law, there are often small differences which can be very important when it comes to taking a case to court. Even certain legal terms are different. For example, the crime of arson in England is called “fire raising” in Scotland. Anyone who is keen to study law must therefore make sure that they are applying for an appropriate course of study so that they will be able to practice in the country of their choice once they graduate.