The Scottish referendum: a new dawn for divorce tourism? By Rachael Kelsey

Divorce|September 18th 2014

I had the pleasure yesterday of taking a taxi with Marilyn en route to the BBC for a phone-in that we were doing on couples and money. Inevitably our chat turned to the Scottish referendum and a typically good and thought provoking article by a fellow family lawyer, David Hodson. He posits (and excuse the simplification) that a ‘yes’ vote in Scotland today will lead to an increase in divorce tourism or forum shopping. I don’t agree and as our discussion meandered, I found myself offering to write some thoughts…

Why do I think that there will be no increase in forum shopping and, indeed, that independence could deliver less of this behaviour (which always favours the economically dominant partner)? We already have forum shopping in the UK, but it is, arguably, a much less pleasant kind of forum shopping than that available between EU member states. It provides that the jurisdiction that prevails intra-UK is the one where the couple last lived together. Forgive the gender stereotypes here, but my practice is overwhelmingly men who earn and women who are dependent. My experience is that the economically dominant party, intra-UK, currently has more scope than that enjoyed by other EU citizens to manipulate matters – delivering, for example, the economic advantages of a Scottish divorce (and those advantages are significant, with support post-divorce being unusual and wives often having minimal claims).

Post-referendum, pre-independence, nothing will change. Post-independence though, if Scotland is an EU member state, rather than just a territorial unit within the UK, everyone in the UK would enjoy the same forum shopping protections that exist currently for the French, the Spanish, the Germans and so forth. This would prevent rich men from trying to stop their wives having their divorce dealt with in a more economically advantageous jurisdiction, as so many currently do. It would be fairer, more transparent and simpler – especially if Scotland embraced the chance to opt into the Hague Protocol and applicable law. I have given up hope for England and Wales in that regard.

So does all this mean that I am a ‘yes’? No. Many reading this may find it incomprehensible (and irresponsible of me) when I say that I am still unsure how I will vote. I don’t think that I am unusual in this. I am, as many, profoundly conflicted: I am intrinsically wary of nationalism; I am both Scottish and English by heritage; I am a mediator by nature and I believe passionately that there is much to be gained from having to live with difference, learning from it and, indeed revelling in it. But what can I make of UKIP telling me that I should vote no? What can I make of the prospect of a referendum that may take my country out of the EU, when I am a passionate European who sees our opt-outs from some European family law regulation as an embarrassment, if not a shame, on our nation? Such regulation was designed to make it easier, cheaper and fairer for EU citizens to live across borders. What of the widening gap between rich and poor and a fiscal conservatism that is comfortable with that – a fiscal conservatism that I have no control over?

Today I am home to vote. Home to my husband and a child who is not yet 16 (but who has classmates who do have a vote); a husband who has read EVERYTHING, analysed and considered, but who still shares my conflict and remains undecided; a son who told me today that there is internecine warfare in his class of 15 and 16 year olds and who feels that ‘yes’ is the only obvious way forward in a brave new world. Maybe the way forward is the way of my daughter, who has no vote but who values peace and solidarity above all? Family tea and decision time. Voting at 9.30pm. I’m still not sure….

Read David Hodson’s article here.


Rachael is a solicitor and one of the founding directors of Sheehan Kelsey Oswald Family Law Specialists, the largest niche family practice in Scotland.

Rachael works in Edinburgh and London, practising Scots Law. The majority of her work in latter years has had cross-border or international elements. Rachael has been accredited by the Law Society of Scotland as a Specialist in Family Law since 2004 and is also accredited as a Family Mediator. She is Secretary of the IAML (International Academy of Matrimonial Lawyers) having previously been Counsel to the organisation. She was a founding member of the group set up to institute a bespoke Family Arbitration scheme in Scotland – FLAGS – and currently is the only person in Scotland to have acted as an Arbitrator under that scheme. Rachael was trained as a Collaborative lawyer in 2004 and is the only Scottish member of CFL (Collaborative Family Law).

Rachael is a published author on family law issues: she writes regularly for legal journals and the press and is often called upon for comment by the broadcast media.

When Rachael is not working she shouts at her children, argues about work-life balance with her husband, eats, drinks (good) wine and boxes.

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