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Keep Christmas for the children


Christmas celebrations for children are often marked by family divisions when relationships break down. According to statistics from the ONS around 100,000 children per year see their parents divorcing, with many of those families separating immediately after a last Christmas together. Family lawyers see a surge in new enquiries for divorce each New Year.  Alongside this are those, children who will be affected by family breakdown, but who are not shown in those statistics, as their parents are not married.


Whilst a separation may offer hope of ending a difficult time, too often it marks the start of a new challenge, with couples engaged in a drawn-out and difficult process, instead of collaborating to find common ground.


For many families, the final Christmas will be marked by arguments and behaviour that may be used as an example of the unreasonable behaviour in a divorce petition.  To proceed with a divorce, the marriage must be shown to have irretrievably broken down, with adultery and unreasonable behaviour being the most common grounds which enable a party to proceed immediately with divorce proceedings. It is possible to wait for a period of at least two years separation immediately preceding the issue of the divorce petition, which will require the other party to consent or five years separation without the other party’s consent. Separate living arrangements can be difficult to achieve before assets have been divided through the process of divorce, highlighting why adultery and unreasonable behaviour are the most commonly used grounds. Whilst the separation 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 a 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 Agreements and greater rights for cohabiting partners, who have been shown to be at greater risk after a  separation, with fewer routes for financial protection.


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 unfortunately there are no such protections unless an asset is legally owned by the parties, for instance  if your name is on the title deeds for a property, as joint tenants or tenants in common, if you have a jointly named savings account or you have contributed to the purchase price of the family home which is owned by the other party.


The lack of financial remedies 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.


Whether starting out or in a committed relationship, whether married or cohabiting, it is sensible to think about protecting assets through a Pre or Post nuptial agreement or a cohabitation agreement.  For many couples, simply having the frank discussion that goes into making such an agreement can help to create a positive, open attitude in a relationship from the start.  While Pre or Post nuptial agreements are not yet legally binding in the UK, they have increasing weight after being tested in the courts.


For those couples anticipating their last Christmas together, the advice is to seek a collaborative approach to arrangements for both children and financial matters.  For divorcing couples, mediation will usually involve reaching an arrangement separately from the actual divorce proceedings, with the resulting agreement being presented to the Courts for a formal consent order to be  approved.


Collaborative Law and mediation are the best way to  lessen  the pain of separation.  Most couples find these options a way to resolve matters more quickly and easily which assists in putting the children’s interests first.  The actual process of divorce has become much simpler in recent years and many couples are taking a DIY approach, but involving a specialist mediator, and receiving advice from a solicitor concerning what is a fair settlement, can make the difference between a good or bad separation, particularly where children are involved, and this is true for cohabiting couples also.


For advice please contact a member of our Family Team.


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This is not legal advice; it is intended to provide information of general interest about current legal issues.



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