McKay Norwell

Victoria Rodner consulted with us on 11 March.  She explained that she was from Venezuela and married to a Thai national with whom she had a young son.   Her mother was Scottish and residence had been taken up in Scotland at the point of marriage.   The marriage had failed just over a year previously.  She had since become re-acquainted with her childhood sweetheart who was Spanish born and running the Portuguese end of a German multinational company.  As part of his duties he was required to take up residence in Lisbon in the summer of 2011.  Ms Rodner wished to move to Lisbon with the child of the marriage with a view to residing with her boyfriend with a view to ultimate marriage.

Ms Rodner had been represented by other Agents for the previous 12 months but little progress had been made in resolving the various issues and in particular the estranged husband had made it plain that he would not consent to the child of the marriage being taken out of Scotland to reside in Portugal.   There were grounds for raising divorce proceedings against the estranged husband on the grounds of intolerable conduct.  There were some unresolved issues as to whether there was any matrimonial property, which the husband may have a claim on.   After accepting instructions the previous Agents’ file was recovered.  There was nothing wrong with the advice and approach taken thus far but a certain lack of momentum was evident.    To achieve all of Ms Rodner’s objectives within the time scale set was going to be difficult as substantial resistance could be expected from the husband.  In any event the advice was that the husband had to be put on the spot and pressure applied with a view to advancing matters as quickly as possible.   As a result of this advice instructions were received to issue divorce proceedings against the husband and to seek the Court’s authority for the removal of the child of the marriage to Portugal.   The Local Sheriff Court was selected as the most effective forum.  The Court of Session was very suitable for high worth divorce proceedings but was unwieldy and unpredictable in relation to dealing with issues relative to children.   A divorce action raised in the Sheriff Court would however benefit from early Child Welfare Hearings to enable the Court to focus the issues quickly and would also benefit from the hands on approach of the dedicated Family Law Sheriffs who would hear the case.   Simultaneously comprehensive documentary evidence demonstrating that there was no matrimonial property against which the husband could make a financial claim was obtained and exhibited to the opposing Agents.  The opposing Agents were also advised of the precise procedural approach that it was intended that our client would take in the action – in other words that all efforts to delay or adjourn the case, for example to enable their client to apply for legal aid, would be resisted and that we would be aiming to have a decision made on the fundamental issue of authority to move to Portugal heard at a Child Welfare Hearing at the earliest opportunity. 

Defences were received from which it was clear that the opponent had abandoned any notion of seeking a financial award against Ms Rodner having presumably been satisfied from the documentary evidence provided that there was no viable claim to be made.

At a series of Child Welfare Hearings which followed in the early stages of the case the Defender was forced to state his position in relation to Portugal as a result of which the principal objection that he had to the move was that he would not be able to afford to travel to Portugal to see his son on a regular basis.   As a consequence discussions were able to commence as to how this problem could be overcome.  In the event Ms Rodner had significant resources available to her via her family and we proposed the creation of a Travel Fund which would be paid to the opponent in return for his consent to the move to Portugal and which would then be available to meet his travel costs over a number of the following years.  

A Minute of Agreement setting out settlement terms between the parties was agreed upon.   As part of the settlement the grounds of divorce were converted from intolerable conduct to one year separation with the consent of the opponent and a short undefended Diet of Proof fixed resulting in a Decree of Divorce passing in favour of Ms Rodner on 24 June 2011 which Decree also contained the/