The clean break versus the long goodbye: a cross-border comparison of divorce laws in Scotland and California

Scotland has always been a draw for US citizens looking to relocate.

Traditionally, many Americans moved to Scotland for purely economic or personal reasons, to study at Scotland’s world-class universities or for employment opportunities in sectors such as financial services or oil and gas. 

However, research suggests that a recent sharp increase in the number of Americans choosing Scotland have felt driven to do so due to personal values, outlook, and way of life.

Settling in another country brings significant change on several fronts, not least with regards to one’s personal affairs and the laws that apply in the event of their relationship breaking down.

What does this mean for Americans who are living in Scotland or considering a move?

In Scotland, marriage is considered a financial partnership. Therefore, if the marriage ends, Scots law considers there is no need to continue any kind of financial relationship, unless the couple have children. As a result, the Scottish system favours one-time, lump sum payments and the division of household assets assessed at the point of separation.

In situations where one spouse might have greater needs in the future - such as being a stay-at-home parent out of the workforce or as a result of medical issues - they are more likely to be entitled to a larger share of the assets at the time of divorce, rather than receiving long-term financial support.

That’s not to say there are no payments, but Scotland restricts spousal support to a maximum of three years to help both parties adjust to life after marriage, unless in limited circumstances where the end of the marriage will result in serious financial hardship.

While Scotland emphasises a clean break, California’s approach might be called “the long goodbye” - to borrow a phrase from one of its most famous authors.

Under California law, marriage is viewed as a long-term financial partnership that doesn’t necessarily end with a divorce. Spousal support can easily exceed the Scottish limit of three years. For long-term marriages, 10 years or more, a family law court may maintain oversight of spousal support indefinitely.

Furthermore, California typically focuses on preserving the standard of living that both spouses had during the marriage, which can result in significant monthly payments over the years. The concept of marital union also extends to property. While the focus in Scotland is on fairly distributing assets acquired during marriage, even excluding inherited property, California law assumes that all assets gained during the marriage are jointly owned and must be divided equally.

As a side note, this is tied to a broader difference between the U.S. and the U.K. While American family courts are built around a presumption of equality, judges in Scotland, as well as England and Wales, are instead focused on fairness. In California, the distribution of assets is more formulaic and follows a strict mathematical formula.

The legal differences between California and Scotland reflects differing philosophical views of marriage.

In California, marriage is a true union of two people, like copper and tin combining to become bronze. When the marriage is over, you can’t simply extract one element from the alloy: some trace will always remain. Even in divorce, a couple in California is presumed to have some responsibilities for each other, and their combined assets may simply be divided in half.

In Scotland, marriage is a partnership between two separate people. Using the metal analogy, it’s like two pieces held together by a strong magnetic force. When the marriage ends, the two pieces can be pried apart and returned to their original states, more or less.  After a Scottish divorce, the couple generally does not remain financially bound to each other long-term. Once the three-year maximum of spousal support ends, they are essentially strangers under the law, unless bound in other ways, i.e. children.

Both approaches have their pros and cons.

In California, complex and hard-to-value assets like cryptocurrency or intellectual property have led some high-net-worth couples to choose a lump-sum payment after divorce to avoid years of spousal support, while in Scotland, spouses who make less money or have few assets may find themselves worse off in the long run.

The Scottish model provides people with a sense of closure, while the California model offers a safety net for spouses who took time off from their careers to focus on the family.

Both approaches offer different answers to the same core question: when a marriage ends, what do we owe each other?

Alphonse Provinziano is the founder of Provinziano & Associates, based in California, where he and his team specialize in international family law cases, including those involving celebrities and other high-net-worth individuals. He is a certified family law board specialist and a fellow of the International Academy of Family Lawyers. 

Jennifer Wilkie is a partner in the family & divorce team at Burness Paull.  Accredited as a family law specialist and mediator, she is also a fellow of the International Academy of Family Lawyers. 

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