Will Harry and Meghan have custody of their own children?

August 22, 2018

Duke and Duchess of SussexA story has made the rounds this silly season that the Queen has custody of her minor grandchildren (and by implication her great-grandchildren) instead of their parents. This appears to be total nonsense.

This all seems to rely on a blog post by an American royal journalist Marlene Koenig who in turn relies on an article in the Times from 1993 by Michael L. Nash (which I could not find). The story relies on a number of points:

  1. A court case from 1717: Case concerning the King’s Prerogative in respect to the Education and Marriage of the Royal Family. Hilary Term, 4., Geo. I. 1717
  2. This was a law that was passed by judges in 1717.
  3. A contention that this was re-enacted in 1772
  4. The fact that Prince Charles and Princess Diana’s divorce settlement did not deal with custody of their children.
  5. An extrapolation from grandchildren to great-grandchildren (which even Marlene Koenig denies to have made).

Let’s take these points in turn. Before doing so, I must state that I am a family lawyer, not a constitutional lawyer, so if I get any constitutional points wrong, please do let me know.

1717 Case

This is a case on whether the King has a royal prerogative in the area of custody of his grandchildren. The question to the court was:

‘Whether the education, and the care of the persons of his majesty’s grandchildren, now in England, and of prince Frederick, eldest son of his royal highness the prince of Wales, when his majesty shall think fit to cause him to come into England, and the ordering the place of their abode, and appointing their governors, governesses and other instructors, attendants and servants, and the care and approbation of their marriages, when grown up, do belong of right to his majesty, as king of this realm or not.’

This was before fathers and mothers had equal power over their children etc. A royal prerogative exists where there is no statute or other legal provision, i.e. a legal vacuum. The government contested it could use the royal prerogative to invoke Article 50 of the Treaty of the European Union to give notice to leave the EU, but the courts held that because Parliament had legislated in this area, it needed parliamentary approval: no gap in law – no royal prerogative (R (on the application of Miller and Dos Santos) v Secretary of State for Exiting the European Union and associated references [2017] UKSC 5). So if Parliament has legislated in the area of child custody since (and it has) and did not exempt the royal family, this trumps any royal prerogative the sovereign may have had in 1717.

Enactment

No law was passed by judges. Judges do not pass laws, they interpret them. Parliament passes laws and did not do so on this point in 1717.

Royal Marriages Act 1772

The case report of the 1717 case refers to a preamble to the Royal Marriages Act 1772, which stated “that ‘the kings of this realm have ever been intrusted with the care and approbation’ of such marriages.” So nothing was enacted about the custody of minors. The point made here is simply that the act stated that the King had those powers anyway. However, now that parliament has legislated, these powers are no longer a royal prerogative and indeed the Royal Marriages Act 1772 was repealed by the Succession to the Crown Act 2013. This does not revive the royal prerogative. Instead this shows that once parliament legislates in an area, there is no longer a royal prerogative, even when it comes to the royal family.

Charles’ and Diana’s Divorce Settlement

By 1991 the Children Act 1989 (which does not exempt any royal prerogative) had come into force and there concepts of “custody” no longer exist in English family law. Married parents have parental responsibility and retain that even when they divorce. There has been no need for any apportionment of custody or other parental rights in a divorce settlement since then and indeed you cannot include it in the main financial settlement. Separate court proceedings are necessary if parents do not agree and the law now actively discourages parents from litigating. So the fact that Charles’ and Diana’s divorce settlement did not award custody to one of them is neither here nor there.

Great-Grandchildren

Even Marlene Koenig does not contend that the royal prerogative extends to great-grandchildren, so even if it still existed, as for Harry and Meghan’s children it is a non-story.

So here we are in the silly season of summer and media outlets are copying from a 2013 blog post to create a story which seems to have no foundation in law at all.

Heated and Long “Unreasonable Behaviour” Divorce Petitions

June 29, 2016

I saw a client the other day who came with a divorce petition his wife had issued against him after they had recently separated. This contained two pages of allegations of unreasonable behaviour. Leaving aside what if anything of this may have any basis in truth in the particular case, I was quite taken aback that the solicitor had even drafted and issued this petition on behalf of the wife. While I am not privy to the instructions of course, the particulars looked as if the solicitor had simply taken down what the wife had told them and copied it onto the divorce form.

Before going into detail it is important to go back to the law and remind ourselves that the fact is not “unreasonable behaviour”, but (as set out in section 1 of the Matrimonial Causes Act 1973)  particulars showing:

“that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent”

So the behaviour itself does not need to be unreasonable at all. Reasonableness goes to the question of whether future cohabitation can be expected.

So this petitioner, which is not uncommon had a variety of allegations, including:

  • Things the husband was supposed to have done 2 years ago or more. This is irrelevant. The behaviour alleged must be in the six months before separation or, if later, before the petition according to section 2(3).
  • Justifications of the wife’s own behaviour. Again this is totally irrelevant.
  • Issues which are not behaviour, such as communication problems between the parties, the relationship they had with their family etc.
  • An extended narrative of the history of the marriage (moving house and jobs). A brief sentence may in some circumstances be needed to understand an allegation of behaviour, but anything more than that is probably superfluous.
  • Allegations which are unspecific about when they occurred (“recently”). Even if exact dates are not known, it needs to be clear that this was within the six-month period (for example, “at some time in October 2014”).

With behaviour petitions as in so many other legal and non-legal contexts, quantity does not make up for lack of quality.

Nor do courts endorse parties slinging mud against each other. Contested divorces lead to a hearing in public. It rarely happens because the process is complicated and, if the parties are represented, costly. With more people representing themselves, it is likely that they are going to be more frequent. Courts try to discourage them, as in a recent case where a husband (an immigration solicitor it seems) insisted on divorcing his wife on quite salacious allegations including that she offered her services as a prostitute to women on the website Gumtree. If in this case the husband loses the case in the end, he may face having to pay his wife’s legal costs. The judge in the Court of Appeal, Lady Justice Black, pointed out that since they were separated for more than two years and both wanted a divorce, they could agree to withdraw the behaviour petitions and divorce on two years’ separation and consent.

Often clients are unsure what they can use as behaviour. Two points to bear in mind frequently lead to an easy solution:

  • The behaviour does not need to be before the separation, it can be after the separation. Often one or both spouses have found a new partner, whether a serious relationship or on a more casual basis. The only question is whether the petitioner can reasonably be expected to live together in the future, not whether it was reasonable to separate at the time.
  • Any intimate relationship which does not fall into the category of adultery can still be behaviour. This is also helpful for civil partnership dissolutions.

So one solution in many cases, which does not inevitably cause concern for the other spouse is to have a behaviour petition based on the other’s intimate relationship(s) with another man or woman (who does not need to be named) since separation. In fact it is not necessary to specify the gender of the person the respondent had an intimate relationship with.

For help with drafting a petition and divorce in general, please contact us.

by Andrea Woelke