Scots Law

The result of the Scottish referendum will not change the legal system in Scotland; Scotland has always had its own legal system which is known as Scots Law. The legal jurisdiction in which we live covers England and Wales and is known as English Law. Northern Ireland has its own legal system again.

Areas of law such as tax, employment, commercial law and consumer rights are similar in both the English and Scots law jurisdictions. This is because these areas are more likely to be influenced by UK central Government policy and European Union law.

English and Scots law is completely distinct in areas of law which affect individuals, namely family law, criminal law, probate and property.

People generally know that there is a different system of buying and selling property in Scotland. Many feel that this is better because once an offer has been accepted on a property it is binding on both the buyer and the seller.

In the area of criminal law, we hear on the news in Scottish cases that the accused has appeared before a Sheriff’s court. This is not an exact equivalent of either the Magistrates’ Court or the Crown Court.

In family law developments such as same sex marriage have arrived at a similar time in both jurisdictions; though same sex marriage has not yet come into force in Scotland. Cohabiting couples have slightly more protection under Scots law. The law on divorce, finance and property and children uses very different terminology. However, the outcome of a case in any given set of circumstances is unlikely to be that different in either jurisdiction.

If a solicitor practising in English law is asked to advise on a matter of Scottish law, they must decline the instructions and refer to a lawyer qualified in Scots law.

For people living in the border area, the law which applies to their case depends on which jurisdiction has the closest connection. This is quite straightforward in property disputes as it is clear where a property is situated. It may not be so clear cut in family cases, for example the children may live Scotland and the matrimonial home could be in England.

The two legal jurisdictions have co-existed side by side for hundreds of years and the outcome of the independence referendum will not change this.