Read the article here.Around 42,300 people came to Scotland from overseas in the year to June 2011, with a slightly higher number travelling north from England. For 10% of the births registered in Scotland, neither parent was born in the UK, an increase from 3% only 10 years ago.
That rings true with my own experience in the capital. It’s clear that Edinburgh is more of a multi-national and multi-cultural city than ever (and not just during Festival season where almost person you meet is either a slightly bemused tourist or an over-enthusiastic Oxbridge student waving flyers for his Fringe debut). In the playpark (with the child, I hasten to add, not on the swings on my own) the different number of accents and languages is surprising. I love it – getting to know people of different backgrounds and nationalities opens up new perspectives, and generally makes life that bit more interesting.
But, as a family lawyer, I wonder if the people from abroad who have recently made their home in Scotland and started families here have given thought to what might happen if the relationship breaks down. In those circumstances, a lot of people just want to head “home” - and that usually means the country of their childhood, where parents and family have remained. There may be some legal difficulties with that…
Taking the kids?
Firstly, it may be fine for a spouse to head off to another country after a break-up – but taking the children with you isn’t so straightforward, as the other parent’s consent will be required. If that isn’t forthcoming, you might face a lengthy and expensive relocation case in Court, in which the judge will weigh the pros and cons of the proposed move in terms of the best interests of the child (not the parents). The same considerations may apply if you just want to move elsewhere in the UK – after all, the travel time from Scotland to Cornwall is greater than hopping on a plane to a European city. Trying to bypass that route by simply leaving the UK with your child is most definitely not recommended - you may face a petition under the Hague Convention on Child Abduction, in terms of which the default position is a quick return of the child to Scotland, with limited defences.
Divorce here or abroad?
International couples who have moved away from the country of their childhood sometimes assume that the rules of “home” will still apply, if they are to divorce. That isn’t the always the case.
Within Europe, there are rules regulating where a couple can apply for divorce. There is a list of seven possible connecting factors between a couple and the Court in which they wish to divorce. Most of those factors relate to where one or both spouses are “habitually resident”. It is however also possible to raise divorce proceedings based on a couple’s joint “domicile” or joint nationality.
If there are two or more possible Member States within Europe where the couple could divorce, the Court to which one of the spouses applies first will “win”. This is not a provision designed to promote marriage reconciliation. Instead, once a relationship breaks down, there can sometimes be a race to get to the best Court.
There is then the question of which law the Court applies. Courts in continental Europe will often apply the law of the parties’ joint nationalities. For example, if a Scottish couple were divorcing in Spain, the Spanish Court would apply Scots law. That isn’t the case in the UK. The Scottish court will always apply Scots law, regardless of where the couple are from. So a Polish couple divorcing in Edinburgh could find that they are forced to use both an unfamiliar court system, and a foreign law, to resolve the issue of their marriage breakdown.
In short, behind the “happy” story of how Scotland’s population has grown, there may be an unhappy story about the added complications for relationship break-ups. Or maybe that’s just how a divorce lawyer looks at it…