Family Law

Question: My son has recently separated from his partner who is refusing him contact with his children. I am worried we will lose our relationship with our grandchildren. What can I do?

Andrew Kingston, family law specialist, Charles Lucas & Marshall

Andrew Kingston - Family Law Specialist

It is a well known fact that after a relationship breakdown, up to one in three children lose touch with an absent parent within three years – normally the father –  and do not see that parent again.

What is often forgotten is that these children also lose touch with their grandparents.

The time spent with grandparents is an integral part of a child’s upbringing which can provide a child with experiences that cannot be derived from other relationships. The loss of this relationship when a child is going through the distress of family separation is therefore devastating for that child.

If possible, the first step is to encourage your son to resolve his own contact arrangements as normally a grandparent’s contact can develop as part and parcel of those contact arrangements.

If this is not successful then you should try and talk with the children’s mother and explain to her that despite what might be going on between her and your son, your wish is only to maintain a relationship with your grandchildren and not to take sides.

However, if the relationship is too strained, then a referral to family mediation may be an option. This would require the agreement of all parties and would involve a series of meetings with an independent mediator who will help you to try and reach an agreement through structured negotiations.

Failing this, a child focused and amicable letter from a solicitor setting out why it is important for you to maintain your relationship with your grandchildren may be all that is needed to bring an agreement.

If none of the above lead to a resolution then an application to court for a Contact Order will be needed. Presently grandparents do not have an automatic right to apply for a Contact Order so you will have to apply for leave (permission) from the court to make the application. You will have to demonstrate that you have a meaningful connection with the children in order to be granted permission but this should not be a hurdle.

For more information please contact Andrew Kingston on 01635 521212 or andrew.kingston@clmlaw.co.uk.

Q My husband and I have fallen out of love and want to divorce.  We’re still good friends and no-one is to blame so can we agree to a ‘no-fault’ divorce?

A. Suzy Hamshaw, family lawyer, Charles Lucas & Marshall.

Suzy Hamshaw

Although the concept of ‘no-fault’ divorce was included in Part II of the Family Law Act 1996, that part of the Act was never brought into force and was recently repealed.  It had been intended that couples wishing to divorce should attend an information meeting (with a view to reconciliation being encouraged  where possible and where not, mediation to resolve issues) but if that didn’t change things then after filing a statement of marital breakdown and waiting for a period of reflection, the couple would be granted a divorce.

Despite its intention to promote reconciliation, the Family Law Act actually provoked an outcry that it was undermining the sanctity of marriage and making divorce too easy.

As a result we are, for the time being, left with the Matrimonial Causes Act 1973 which sets out the basis for divorce in England and Wales.  Contrary to common mistaken belief, grounds  for divorce is not ‘irreconcilable differences’ – it is ‘irretrievable breakdown of marriage’.

Irretrievable breakdown of marriage then has to be proved by one of five facts: adultery, unreasonable behaviour, two years separation where both parties consent, five years separation where consent is not necessary and finally, desertion.  So, to an extent I suppose,  we do have     ‘no fault’ divorce because where there is separation of two years or more (subject to consent), no-one needs to take the blame.

For many couples though who have come to the difficult but mutual decision that their marriage is at an end, two years can seem an unnecessary wait.  In those circumstances the only way to go ahead with a divorce sooner is for one party to be proved to be at fault in a petition based on unreasonable behaviour or adultery.  This however can lead to ‘mud slinging,’ moving us further away from, rather than closer to, a conciliatory approach to family law.

Speaking at the annual Resolution conference in Leeds last month, Sir Nicholas Wall, President of the Family Division claimed that divorce is now an “administrative” process rather than judicial and it was no longer important “to demonstrate you were the ‘innocent’  party”.

In practice, I regularly advise clients that (subject to certain exceptions concerning costs and the nature of the allegations of behaviour) it usually does not matter whether they are the petitioner or the respondent.

In a recent Court of Appeal case where the respondent, Susan Rae fought against her husband’s application for decree nisi, Lord Justice Thorpe said much the same thing as Sir Nicolas Wall.  In this case he felt it was counter-productive  that the minutiae of a 20 year marriage had to be raked over in such a painful way because divorce laws meant one spouse or the other must be shown to be at fault.  Mrs Rae was fighting the decree nisi on the basis that her having moved the television aerial, taken the fuse out of the washing machine and thrown away her husband’s food for his packed lunch should not be sufficient to end their marriage.

For further information contact Suzy Hamshaw at Charles Lucas & Marshall’s Newbury office on 01635 521212 or at the Hungerford office on 01488 682506 or e-mail her at suzy.hamshaw@clmlaw.co.uk