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Dispute Resolution

Recent publicity around the Supreme Court’s refusal to grant a divorce to a woman, who claimed to be ‘trapped in a loveless marriage’ to her husband of 40 years, has highlighted the differences in divorce law in England and Wales, compared with Scotland.                                                                                                                                                                                                                     

Family practitioners have been eagerly awaiting the Supreme Court decision in the case of McDonald v McDonald as to the interpretation of Regulation 4 of the Divorce etc (Pensions) (Scotland) Regulations 2000.   The Supreme Court have now released their judgment – creating a landmark decision for how pensions should be treated upon divorce.                                                                                                                                                                                                                             

To date solicitors have been restricted in the types of fee arrangement that can be offered to clients. For example, solicitors have been unable to charge a fee based on the percentage of sums awarded in a litigation.

                                                                                                                                                                                                             

When spouses separate and require financial resolution between them as a result, in Scotland they will be advised by family lawyers that they are entitled to fair division of the net matrimonial property.  In general terms matrimonial property includes all assets belonging to the parties individually or jointly which was acquired during the period of marriage and held as at the date of separation, less any debts similarly held by the parties individually or jointly as at that date, subject to a few exceptions.                                                                                                                                                                                                                                

New requirements have come into effect which will have application for many of the major commercial disputes litigated here in Scotland. These requirements aim to nudge parties away from the Court and towards Alternative Dispute Resolution (“ADR”) or settlement. Below is set out a summary of the changes and what their effect may be for those parties engaged in a commercial dispute.

The introduction of 'Pursuer’s Offers' is the latest in a number of recent changes to the Court rules.  These changes come into force on 3 April 2017 and apply to both Court of Session and Sheriff Court actions.  They follow the theme of encouraging litigants to settle cases before they reach an evidential hearing in a case.

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