Family Law Matters

Questions:

1. Under the law, when parents separate, child arrangement orders can be made to set out who the children will live with and who they would have contact with. Such order can also set out when the child will have contact with the other parent when they live with one parent. In such a situation, the other parent has the right to direct, that is, face to face contact with the child. Such contact can also include staying with parent overnight or more than one night, which is called a staying contact. Parental responsibility is automatically with the parent with whom the child is to live. Enforcement order can be made by the court if the parent does not comply with the child arrangement order. These provisions are discussed in some detail below.

The question is whether John has rights and or parental responsibility to insist on the Wednesday and Friday to Monday contact arrangements. First, Parental responsibility is defined in the Children Act 1989, Section 3 as “all the rights, duties, powers, responsibilities and authorities which by law a parent of a child has in relation to the child and the child’s property.” Thus, parental responsibility allows the parent to decide issues relating to where the child would live and other matters related to education, health and religion. Both the mother and married father have parental responsibility for the child under the Children Act 1989, Section 2(1), which provides that “Where a child's father and mother were married to each other at the time of his birth, they shall each have parental responsibility for him.”

In context of the rights to contact, judges have considered contact between parents and children to be important (Re G (Children) (Residence Same Sex Partner) 2006). Courts have even seen this as a right of the child to contact with the parent, to which the other parent may not object unless there is good justification, such as, when the other parent is an abusive person with whom contact may be detrimental to the child as well as the mother who may be exposed to abuse through the contact (Re H (Children Contact Order) 2001). Other than that, there cannot be a justifiable reason for a parent with custody to oppose the contact with another parent. Therefore, Sarah may be advised that she will not have a strong basis for opposition to the children’s contact with John as per the terms set out.

With regard to the second issue, which is, whether paternal grandparents have any rights and parental responsibility to contact on Saturday, Section 8 of the Children’s Act 1989 allows court to make child arrangement orders for contact at the behest of the grandparents if the grandparents have leave of the court to make such an application. In Re M (Care: Contact: Grandmother’s Application for Leave) (1995), the court held that the test for success of such an order will be based on a good arguable case. Under Section 10(9), certain criteria are laid down for the court to consider in making such an order, including the relation of the applicant with the child, the wishes of parents, and the wishes of the local authority if relevant. Grandparents do not have an automatic right to contact or standing to apply for orders under Section 8, but they can seek leave to apply for the same from the court. In Re S (Contact: Grandparents) (1996), previous antagonism was the reason why the order was not made in favour of the grandparents. However, in this case, the grandparents have had the children over every other Saturday for the last 5 years. With this background, the court in this case may ask the question under Section 1(5) as to whether a continued contact with the grandparents would be in the best interest of the child or conversely whether disruption of contact after 5 years would be better for the child. It is possible that the court may come to the conclusion that grandparents ought to continue contact because to not do so would be disruptive for the children who are used to meeting their grandparents every other Saturday 10am to 4pm.

2. There are five grounds for divorce under the Matrimonial Causes Act 1973, Section 1(2). These are unreasonable behaviour; adultery; two years consensual separation; five years’ separation; and desertion for at least four years. In this case, although John has been unfaithful to Sarah, she cannot apply for divorce under the ground of adultery because this ground is only available when a spouse has sexual relations with a member of the other sex. The Matrimonial Causes Act 1973 defines adultery in this manner that “only conduct between the respondent and a person of the opposite sex may constitute adultery for the purposes of this section” (Section 1(6)). Therefore, this option is not available to her. She may apply for divorce on the ground of unreasonableness under Section 1(2)(b) that the respondent has behaved in such a way that she cannot reasonably be expected to live with him. Sarah will have to establish that John has behaved in a certain way which makes it unreasonable to expect her to live with him. In Livingstone-Stallard v Livingstone-Stallard [1974], the court held that the test for assessing unreasonable behaviour is whether any right-thinking person would come to the conclusion that the respondent had behaved in such a way that their spouse cannot reasonably be expected to live with them. Unreasonable behaviour does not have to be intentionally so (Katz v Katz [1972]; Thurlow v Thurlow [1976]).Therefore, Sarah can seek divorce from John on the ground of unreasonable behaviour as he has been having homosexual relations with David for one year in which period his behaviour towards Sarah has completely changed and its not possible for her to live with him as his wife anymore.

Coming to the second issue, which is the approach the court is likely to take in the event of divorce with relation to financial matters between the parties and in particular whether Sarah’s proposals regarding finances are tenable, Sarah proposes that she should remain living in the former matrimonial home under a transfer of the house solely to her and that John should pay child maintenance for the twins. These are two separate matters and are dealt with separately.

First, with regard to the matrimonial house, the house is in joint names and is worth £600,000 today. Sarah contributed £20,000 and John contributed £50,000 to the deposit. There is a mortgage of £240,000 remaining on the property. Although not mentioned, it may be assumed that both Sarah and John have contributed to the mortgage payments and the household expenses. This is also the only property that they both have.

The court can be requested to redistribute family property under Section 24 of the Matrimonial Causes Act 1973. This includes an order made by the court to transfer the property to one spouse. In division of matrimonial assets, the principle of fairness is required to be adopted, which was defined as fairness requiring needs of spouse and children are satisfied, requiring compensation to redress future economic imbalance, and requiring equal sharing of “matrimonial assets” acquired (Miller and McFarlane [2006]). Court will also have regard to the welfare of any minor children under 18 years as per Section 25(1) of the Matrimonial Causes Act 1973 (C v C (financial relief: short marriage) (1997)). The court will also have regard to the income, earning capacity, property, and other financial resources of both now or in the foreseeable future (Schuller v Schuller (1990). The court is to look at the resources of both spouses while making financial orders and this includes reference to inherited wealth, and income and earning capacity. Keeping these factors in mind, Sarah may be considered to be making an unreasonable demand that she alone be given the interest in the property when they both have contributed to its purchase and when John does not have any other property or asset of significance. Instead, it is possible for John to claim a Deferred sale of the property which is an option exercisable in the event that one partner wishes to stay in the property for the sake of the minor children and the property remains in joint names until the future sale of the property. The court may prefer a deferred sale because it allows Sarah to continue living in the house with the names of both parties reflected as legal owners and for the duration of the children’s minority. Such order can be made under the Matrimonial Causes Act 1973, Sections 23 and 24 which empower the court to make finance and property related after the finalisation of the decree.

Sarah can claim right to continue living in the matrimonial home because the court can consider the factors listed under Section 25 of the Matrimonial Causes Act 1973, including welfare of any minor children, which may require that they continue living in the matrimonial home with the parent with custody.

Sarah can also demand payment of maintenance for the children under Section 23 of the Matrimonial Causes Act which can be regular payment of money made weekly or monthly (Parlour v Parlour [2004]).

3. Advise Sarah:

Sarah may have to agree with John with respect to the arrangements for contact because there are not any justifiable causes to avoid contact with John for the children. If she cannot reach an agreement, then there are certain processes for resolving the arrangements for the twins. These processes are accessible through court and the court makes the child arrangement order which will specify with whom the twins will live and with whom they are to have contact. Application can be made under the Children Act 1989 (ss.4, 8 and 10) to make child arrangement orders. It would also be compulsory for Sarah and John to attend a family mediation information and assessment meeting (MIAMS) before making an application to the court as per Section 10 of the Children and Family Act 2014. This is to facilitate a settlement between the parties as to the child residence and contact arrangements before the matter comes to the court. MIAM is compulsory before the court allows a relevant family application from the parties, which is defined in Section 10(3) as an application which is made to the court to initiate family proceedings.

The court is likely to take an approach in considering the arrangements for the twins, which is mindful of the welfare of the children based on the presumption that it would be wrong to deprive the twins of the long term benefits of contact with the absent parent except in exceptional circumstances. This approach is in line with human rights jurisprudence under the ECHR, Article 8 or right to family life, where interests of the child become the dominant factor (Elsholz v Germany [2000]). Thus, in line with this approach, the assumption in English law is that it is to the advantage of a child to have contact with a non-resident parent. Thus, it is likely that the court is going to take a favourable approach to John’s proposition on how contact and residence should be shared between him and Sarah. It may also be noted that the jurisprudence indicates that it is only in rare cases that courts would completely deny contact or restrict contact with the non resident parent. It is only in cases of child abuse that courts may make such orders although even then courts may prefer supervised contact with the abusive paren (LvL (Child Abuse: Access) [1989]). Court may also restrict contact where the children themselves do not want to have such contact (Re F (Minors) (Denial of Contact) [1993]). In this situation, none of these factors are relevant because there is no child abuse involved, John has been a responsible and involved parent and wishes to continue as such.

Sarah’s proposals in relation to contact between the twins and their father are not realistic. She does not wish the children to have any contact with their father as long as he is in a relationship with David. This may be seen as implacable and stubborn attitude by the court. In one case, the Court of Appeal held that it will not allow itself to be dictated to by parents' stubbornness where contact is in the child's interests ( Re J (A Minor) (Contact) [1994]). Thus, the court thought it was unreasonable to give into the demands of the parent to not allow their child to meet the non resident parent due to their own stubborn attitude. Similar principle was laid down in Re H (A Minor) (Contact ) [1994] where the court held that they should not allow themselves to be guided in making their decision on contact with parent based on 'selfish parents' charter’ which is described as an attitude of a parent to make a fuss around the children having a contact with the other parent to such an extent that they believe that they can prevent the court from ordering such contact. The court went so far as to say that the hostility of the mother to the father to the extent of demanding that the father not be allowed to meet the children because of her hostility would be an “unattractive argument to place before a court” (per Butler- Sloss LJ in Re H (A Minor) (Contact ) [1994]). Sarah’s demands that John have no contact with the children until he is in a relationship with David may be seen in this light of 'selfish parents' charter’ by the court if the case goes to the court. The court may not see it favourably and may still make an order to allow contact and residence sharing with John if it deems it to be in the interest of the twins to have contact with their father. Therefore, Sarah should be advised that her attitude can be seen as implacable, stubborn, and selfish, by the court. This would not be in her favour if the matter proceeds to the court, which it will if she continues to deny contact between the twins and John. She is therefore advised to take a more reasonable approach to the matter. Furthermore, as a working mother, she will need John’s support to take the twins to their classes. Therefore, it would not be realistic to avoid contact and may even be seen to be contrary to the interest of the twins by the court. Continue your exploration of Evolution of Divorce Laws in England and Wales with our related content.

4.

(i) The question is whether John could have any right to a share in the value of David’s property if they later separate and what action could he take against David to try to secure a share. As a cohabitee, and not a civil partner, there are limitations to what rights John can derive from David’s property. At this time, the law recognises the right of cohabitants to obtain ‘reasonable financial provision’ under the inheritance provision for family dependents act if the relationship ends on the death of one of the parties under the Inheritance (provision for family and dependents) Act 1975. It may be noted that a cohabitant does not have a right to inherit from the estate of the partner. A cohabitee can claim under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) which permits a party in a cohabitating relationship to use Sections 14 and 15 to receive an equitable portion of the family home upon separation. Section 14 provides that the court may declare the nature or extent of a person’s interest in the property or order it to be sold after having regard to the matters set out in Section 15, which include consideration of the intentions of the person who created the trust, the purpose for which the property subject to the trust is held, and welfare of any children, and the interests of secured creditors. However, for this to be done, John would have to establish that he has a beneficial interest in the property under an express or implied trust or a proprietary estoppel. At this point, there does not appear to be the existence of any trust in the favour of John. There also does not appear to be a proprietary estoppel for which John has to establish assurance, representation, or expectation to a right to David’s property and detriment because of the reliance on the assurance, representation, or expectation by David (Wilmott v Barber (1880)).

(ii) If John and David later plan to marry, David can seek to protect his assets to prevent John from later having any rights over such assets through a prenuptial agreement. A prenuptial agreement is in the nature of a financial agreement between the parties to a marriage or civil partnership to become effective in the event of any breakdown of the marriage or partnership. Prenuptial agreements are not automatically binding under the UK law but, the Supreme Court has held in Radmacher v Granatino [2010] that if such agreement is freely entered into by both parties after consideration of and full appreciation of implications of the agreement, then the agreement can be enforced in a court of law. In the same case of Radmacher v Granatino [2010], the Supreme Court has also laid down the general criteria for a prenuptial agreement to be enforceable, which can be ensured by David so that the agreement will be enforceable. These criteria are that the agreement should be made without duress, misrepresentation, undue influence or fraud, with the parties understanding the implications of it, and the agreement being fair and contractually valid. This can be achieved if the agreement is made with legal advice so that both parties are made aware of the implications of such an agreement.