Christmas celebrations for children are too 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 breaking up immediately after a last Christmas together, and family lawyers seeing a surge in enquiries for divorce each New Year.  Alongside, there are many more children who will be affected by family breakdown, but who are not shown in those statistics, where their parents are not married.   

While the break-up 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 combative process, instead of collaborating to find common ground. 

 For many families, the final Christmas will be 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’ - adultery, unreasonable behaviour and 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. 

For those couples anticipating their last Christmas together, 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.