Pre-nups, divorce and childcare quarrels – why Christmas is a busy time in Samuel Phillips’ Family Law office
Sarah Ward, Partner in Family Law, shares the truths (and breaks down the myths) about separation and the holiday season
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Why do you think post-Christmas is a peak time for divorce enquiries?
Most of the new divorce enquires I receive post-Christmas are no more than a knee-jerk reaction to the added stress and pressure that spending time together as a family can often bring. Such enquires rarely result in divorce proceedings. Rather, in my experience, most January divorces are ‘hangovers’ from previous years. For those in relationships which were in crisis before Christmas, the start of the new year brings a renewed sense of urgency – having resolved not to spend another year in an unhappy marriage.
Similarly, a lot of couples get engaged during the festive period. Does that see a spike in pre-nup enquiries?
Whilst pre-nups may not conjure up the most romantic connotations, they are increasingly becoming part of the wedding planning. No-one enters into a marriage with the expectation that they will separate, but a pre-nup offers a level of certainty. I liken it to holiday insurance. The right time to discuss a pre-nup is as soon as the couple seriously consider getting married, usually after the engagement.
Pre-nups are still relatively few in comparison to the number of engagements and marriages. They’re more popular among couples who are marrying for the second time, perhaps having had a negative experience with a divorce, or for couples who are marrying later in life after they have each already accumulated assets individually. Of those younger couples who enter into a pre-nup, it’s often from encouragement and/or pressure from their parents who are inheritance planning.
We can imagine disputes between parents could come to a head at this time of year too, over where children spend their Christmas holidays. How can you help?
The ‘C’ word for family lawyers is heard throughout the year. It’s often the most emotive and contentious of all childcare arrangements, with each parent vying for the golden goose that is Christmas Eve and Christmas Day with the children. The momentum picks up in September, when separated parents put their mind to the arrangements for the children over Christmas.
How can I help? Firstly, I encourage my clients to attempt to agree the arrangements with the other parent as early as possible, particularly if they want to factor in the children seeing grandparents and other family members. I also encourage the use of the other ‘c’ word – COMPROMISE! If parents can compromise, put the children at the heart of any plans, everyone should have a harmonious Christmas.
For those parents who cannot reach an agreement, I will negotiate on behalf of my client either directly with the other parent or their solicitor. If the parents are still at odds, then the next step is usually to refer the parents to mediation. A specially trained mediator will work with the parents and hopefully help them agree a plan. For parents where there is a high level of conflict, ‘shuttle mediation’ can be used; the parents are kept in separate rooms and the mediator ‘shuttles’ between the two rooms.
What if mediation doesn’t work?
If parents fail to reach an agreement at mediation, they can agree to attend arbitration. This is likened to a private court hearing, where you choose for the Judge to make the decision and the parents agree to accept the decision made. The up-side is that it enables parents to resolve a dispute more quickly, cheaply (compared to protracted court proceedings) and in a less formal way than via the traditional court process.
As an absolute last resort, it is open to either parent to make an application to the court. This is a lengthy and costly procedure and ultimately ends with a stranger deciding how the children spend Christmas – which, in turn, results in two disappointed parents with large legal bills!
What are some of the most common myths you hear about family law – at Christmas specifically – that you’d like to bust?
‘Divorce Day’ – that the first working Monday after the Christmas break is when more divorce petitions are filed than any other day.
For reasons which are not immediately obvious to me, this day has been dubbed by the media as ‘Divorce Day’, and many lawyers have not acted to dispel this myth. Whilst I see a spike in new divorce enquires throughout January, it doesn’t follow that petitions are filed. In fact, I see a bigger spike in enquires after the school summer holidays.
Separation and Divorce signals the end of Christmas merriment.
A different Christmas can still be a merry Christmas. Often more so, if it’s absent of conflict and tension, which may have been a feature of Christmasses past. It is absolutely true that Father Christmas will come twice for children who have two homes, so for the children it’s double the magic.
It can be exceptionally hard for the parent who is not spending Christmas with the children. Finding another way to spend the day is essential; whether it be planning something that they enjoy, spending it with other child-free relatives or friends, or spending the day volunteering.
Out-gifting the other parent will make your child love you more.
I see this over and over. It achieves nothing – well, nothing except spoilt children, resentment between parents and often financial pressure, which leads to stressed parents and unhappy children.
Coming together ‘for the sake of the children’ is for the best.
Bombarded with images of the perfect nuclear family Christmas, separated parents often feel pressured to spend Christmas Day together. If there is tension between parents, then to spend an entire day together requires Bafta-worthy acting skills. Someone will end up snivelling into their sprouts, or worse.
Every family and every separation or divorce is different. What is good for one family will not necessarily work for another.
If you struggled to agree the arrangements for Christmas this year and are looking for legal advice, or if you simply want more information with regards to arrangements for your child, you can contact Sarah in the strictest of confidence.
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