Breaking up is hard to do


18 October, 2015

Family Solicitor Donna Amos provides answers to the questions she faces most regularly about family separations.

Q - My son separated from his wife and she will not allow us to see our grandson. Before they separated our grandson stayed over at our house and came on holidays with us. Do we have any rights as grandparents?

A - Legally, Grandparents have no automatic right to contact. However, the courts widely recognise the valuable and important role that grandparents can play in their grandchildren's lives. The first step is to try and arrange to see your grandson by speaking to your son's wife. Try to remain neutral and not become involved in your son's difficulties with his wife. If this doesn't resolve matters then it may be appropriate to consult a Mediator to see whether an agreement can be reached away from the court arena. If neither of these options resolves matters, then you will usually need to apply for the permission of the court to make an application for a Child Arrangements Order (previously called a Contact Order).

When considering your application for permission, the Judge will consider the merits of your application, the risk of disruption to your grandson and most importantly your relationship with your grandson. It will be important to demonstrate to the court that you have a meaningful relationship with your grandson. Once permission is granted, the court will deal with the substantive application and will have to decide if it is in your grandson's best interests to make a Child Arrangements Order.

Q - I have been married before. I have teenage children and a property from my first marriage. I am now engaged and plan to re-marry. Should I have a pre-nuptial agreement drawn up? I would like to pass my property to my children and my fiancé agrees that he would not make a claim against my property if we were to separate.

A - Pre-nuptial agreements are not currently legally enforceable in England and Wales. However, the Law Commission says that they should be legally binding in divorce settlements, as long as the needs of the couple and any children have been taken into account. I would advise that you obtain legal advice at least 3 months before the wedding. If the arrangement is reasonable, you have both taken independent legal advice, are each aware of each other's financial situation and neither of you have been pressured into signing the agreement, then it is more likely to be upheld.

Q - I have lived with my partner in his property for 8 years. My partner owns the property and pays the mortgage. We have decided to separate. Do I have any rights as a common law wife?

A - No, the term common law husband and wife does not exist in law. There is a common misconception that living together will give rise to the same rights on separation as they would on divorce. As you are not married, there is no right to maintenance (except child maintenance) and no automatic entitlement to make a claim against property, other assets or pensions. There are significant differences between being married and unmarried and it is important to get legal advice about how this can impact upon you.

Forbes' Family Team prides themselves in providing compassionate legal support.

If you are looking for any more information with regards to our services view our Family/Divorce section. You can also contact Donna Amos in our Family/Divorce department via email or phone on 01257 260600. Alternatively send any question through to Forbes Solicitors via our online Contact Form.


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