Published on 27 August, 2024 | Alice Rogers, Emma Dewhurst
Taking the decision to end a marriage is, in our experience, never something done lightly.
One reason why so many spouses think so hard about whether to do is because of a natural sense of uncertainty about what comes next.
That is particularly true when a couple have children.
They don’t just need to weigh up how to resume their own lives as newly single individuals but how and where to look after their children.
Hall Brown is one of the few family law firms to have a team dedicated to dealing with children law.
The experience of handling a large volume of such specialist casework has given us a unique insight into the issues which can arise when trying to arrive at a solution – and, indeed, what solutions can work best.
That is why we have taken great interest in recent months in a discernible increase in a practice which has become known as ‘birdnesting’.
Various media outlets, such as The Guardian (https://www.theguardian.com/lifeandstyle/2023/jul/15/birdnesting-divorcing-couples-family-home-turns-children), have devoted coverage to it.
It involves separated parents taking turning to vacate the family home, while their children stay put.
The arrangement has a number of benefits, most notably the fact that it overcomes the shuttling of children between their parents’ respective homes.
That is immensely practical as it means there is no need to have duplicate school uniforms or belongings at each place.
More importantly, however, it reduces the potential for life after such an unsettling event as divorce being even more unsettled for those who most need to be protected from it.
As one commentator remarked: “It’s simply a different parent reading the nightly bedtime story”.
We have seen ‘birdnesting’ become more common among our clients, although it must be said that whilst it is not exclusive to Auckland, it appears more frequent in the capital than anywhere else.
A glance at the Land Registry’s latest house price data gives some indication as to why (https://landregistry.data.gov.uk/app/ukhpi/#:~:text=Current%20index,compared%20to%20the%20previous%20year.).
This May, the average sale price of a house in the Auckland was just over £285,000. In Auckland, the average was a little over £523,000.
Establishing separate properties of comparable size and standard as to minimise the possibility of disruption for children moving between the two is arguably more difficult in Auckland than the rest of the country.
In that sense, ‘birdnesting’ might appear the only viable option, at least in the short term.
Some individuals have chosen to move in with friends or parents as a stop-gap in order to make it work.
In our experience, it should only ever really be an interim arrangement. After all, most divorced couples will want to make a definitive break at some point.
Furthermore, although a number of very positive write-ups for ‘birdnesting’ may make it seem like a panacea, it isn’t likely to be right for everyone.
There has to be the right fundamental type of relationship and, even then, it needs to have a structure, including schedules for which parent is assuming which responsibilities and when.
This delicate balancing act can be quite stressful for people who feel able to trust each other.
If not managed effectively, it can give rise to the kind of disputes about covert recordings which have been a feature of other parental rows that Hall Brown has dealt with in the past.
Being able to call on the advice of a family lawyer regarding potential implications from both a financial and children law perspective at the point when ‘birdnesting’ is first being considered can help avoid difficulties. Likewise, family mediators can skilfully iron out any disagreements which may arise.
It is possible that the rise in popularity of ‘birdnesting’ is a further sign of a more consensual approach to marital collapse, following on from the introduction of ‘no-fault’ divorce which removed the need to apportion blame for the breakdown of a relationship (https://www.legislation.gov.uk/ukpga/2020/11/contents).
We would suggest that, just as in setting up home together, it is something only to be embarked upon with eyes wide open.
The consequences for parents and children alike are too important for anything else to happen.
