Falling out from Christmas

2018 has begun and Christmas seems like a distant memory.  For some however, their Christmas celebrations have been marked by family divisions or the break down of their relationship.   Claire Knight, Family Lawyer and Mediator, reviews here why family break downs are heightened over the festive period, what steps parents can be taking to ensure this time marks the start of a new life for them and their children, and why it is so important that couples consider methods such as mediation, opposed to engaging in a drawn-out, combative process.

According to statistics from the ONS around 100,000 children per year see their parents divorcing, with many of those families breaking up immediately after a last Christmas together.  This is not a true reflection of how many children will be affected by a family breakdown, as those whose parents are not married do not form a part of the statistics. 

“From our experience, those who we see in January enquiring about a divorce have been considering taking the step for some months prior, but were eager for their children to have one last Christmas as a family,” explains Claire.  “For most, the Christmas period can be a stressful time, and when there are already cracks in a relationship these are only put even more under the microscope.  When a New Year comes around people will naturally look at changes they may wish to make and begin a new life.”

Grounds for divorce

The decision to divorce is not one to be taken lightly, and there will be many factors to consider in addition to any children involved, such as financial arrangements, property and other assets.  For many families however, the final Christmas will have been marked by arguments and behaviour that may come to be used as an example of the unreasonable behaviour that will form grounds for divorce.  To secure a divorce, the marriage must be shown to have broken down irretrievably, with most being ‘fault-based’, including adultery, unreasonable behaviour or the rarely-used fact of desertion. The only alternative is a period of separation of at least two years before issuing the divorce petition, but separate living arrangements can be difficult to achieve before assets have been divided through the process of divorce. And while the break-up for unmarried couples appears to offer a simpler exit strategy, it underlines the lack of legal protection for cohabiting partners. 

There have been calls for a change in the law to allow for ‘no fault’ divorce without long separation, with those advocating the change arguing this could reduce animosity and provide a better environment for children.  Most recently Baroness Hale, the first female president of the Supreme Court, spoke out to say that the law should be changed to address injustices, including ‘no fault’ divorce, statutory backing for pre-nuptial contracts and greater rights for cohabiting partners, who have been shown to be at greater risk after a break-up, with few routes for financial protection.

Claire comments, “Many people who have been living together for any length of time, sharing a home and bringing up children, think they have some special rights through a ‘common law marriage’.  But there are no such protections unless you can establish an interest in property;  something is legally owned between the two of you, for example if your name is on the title deeds for a property, as joint tenants or tenants in common, or if you have a jointly named savings account. 

"The lack of financial remedy for cohabiting couples is often the biggest issue.  While a parent can be made to contribute to the maintenance of their children, there is no such protection for a former partner to claim maintenance if they cannot work while bringing up the children of the relationship.  Similarly, they may find themselves with nowhere to live.”

Family Mediation

For those couples anticipating a separation or divorce, the advice is to seek collaborative approaches to arrangements for both children and financial matters.  For divorcing couples, mediation will usually involve sorting out such arrangements separately from the actual divorce proceedings, with the resulting agreement likely to be presented to the Courts for a formal consent order to be made.

“Collaboration and mediation can maintain or improve communications and help manage the pain of separation.  Most couples find it’s a way to get things sorted out more quickly and easily, and helps to put children’s interests first,” concludes Claire.  “Involving a specialist family mediator, and having guidance can ease the stress of a break-up, particularly where children are involved, and that’s true for cohabiting couples too.”

If you would like to find out more about family mediation, you can contact Claire or the Family team on 02380 717431 or email mediation@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.