The decision was made in a commercial case concerning an alleged overpayment of commission to brokers, which the investment managers who employed them are seeking to recover. They do not know where one of the employee brokers is, and since proceedings are not valid unless they have been properly served on the defendant to ensure he knows of their existence, the claimants in this case had a problem. What they did know was that the defendant had a Facebook account that was still active, so the judge gave his permission for the proceedings to be served that way.

As the solicitor in the case commented, we live in a society that is more mobile than ever before and people move around cities, countries and continents very easily. The traditional court method of service of proceedings at the defendant’s (or respondent’s), last known address is not always sufficient to ensure that he or she knows about the court hearings and has an opportunity to participate in them. When people’s email addresses and social media accounts move with them, it seems makes sense that the courts will feel comfortable giving permission for proceedings to be served this way if necessary.

It is sometimes difficult to locate a husband, wife, civil partner, father or mother in family proceedings too. Usually, a divorce or dissolution petition or other family court documents will be served by first class post to the respondent’s last known address, either by the court or by the applicant’s solicitor. If the applicant or his solicitor serves the papers, in most cases the rules now require that a ‘certificate of service’ setting out how that was done is available to the court before the next hearing. The court is very keen to see that proceedings are validly served, as it is a fundamental principle of justice that every person should be given the opportunity to participate in proceedings affecting them.

If postal service fails, it is possible to arrange personal service by an investigation agent or by the court bailiff, but this may be particularly difficult if there are no details of a workplace or the whereabouts of family members, or if the respondent is abroad. If these methods have been tried and failed, it is possible to apply for ‘substituted service’, eg by placing an advertisement in a local or national newspaper. If it can be proved that the respondent received the documents, service can be deemed; in extreme cases, the court will dispense with service altogether, but this is rare.

This case gives the first indication from the High Court that the law will consider service by social media as a substitute if postal and personal service have not worked. It remains to be seen how quickly judges in the county courts will embrace this new development, but we do believe that they will, and that it makes sense to do so. Social media are an increasing part of all of our lives, and are a useful communication line to those who travel frequently and widely and may otherwise fail to receive notification of a court hearing, or who may wish to evade it in the hope of derailing proceedings. We suspect social media will become an increasingly important part of the court’s service armoury, and welcome this advance. Let us know what you think.

Family cases are all unique, and if your case is very tricky or high-value then you may find yourself travelling to London for hearings in either the High Court or the Principal Registry of the Family Division (the specialist family county court). However, most family court work is heard at the local city’s county court building. The court building itself tends to be used for mainstream civil cases – usually claims for money – as well as for family cases. A different court, the crown court, is used for serious criminal cases; less difficult cases in all areas of law, including family, are dealt with in the magistrates’ court.

When first entering the court building you will need to go through security who will check your bag similar to an airport security check. Your case number will be listed on the notice board at the entrance and this will say which judge is hearing your case and in which court. If you are not sure the security staff are very friendly and will help you to find where you need to go. Check with your lawyer before to arrange what time and where they would like to meet you.

In the county court, the courtrooms themselves are usually modern rooms containing benches in front of a raised platform, where the judge will sit during the hearing. There are usually some individual rooms available outside the court for you and your lawyer to have private discussions. Be prepared that there may be some delay in getting in to see the judge.

Family cases in the county court are usually heard by district judges (do check with your solicitor if you are not sure what level of judge is hearing your case). There are no juries in family cases (juries are only used in serious criminal trials in the crown court) and the judge alone makes the decision. District judges are lawyers of considerable experience and expertise. In family cases, they do not wear judicial robes. The hearing is often more informal that people expect, although judges command significant respect and the hearing will follow a set course, with each party speaking in a particular order.

In a family case, the person making the application (the applicant) or a solicitor/barrister on their behalf speaks first to tell the judge what they are asking him or her to do. The other person (the respondent) or their legal representative then has a chance to put their case. Often, the judge will ask particular questions of one side or another, taking a more active role in the case than you might expect. In some cases, the judge will hear evidence from both sides and also from any independent or jointly-instructed experts if relevant, before making the decision. Unless the judge is hearing evidence, if you have a lawyer representing you, you are unlikely to have to speak to the judge. Sometimes, if the appointment is a final hearing, the judge will take time to think about and write his or her judgment. In most cases, the judge’s decision is made and communicated before the parties leave the courtroom, although it will take a while to receive the order on paper from the court.

Clients often ask us what they should wear to court. Questions of this sort are difficult to answer: clothing is such a personal thing and one person’s smart suit from M&S is another person’s worst nightmare. We would advise clients to wear something smart-ish and comfortable, and in which they feel themselves. Judges are trained not to judge people on their physical appearances, so the most important thing is for you to feel comfortable and the best ‘you’ you can be.

If you have any questions about family law or the family courts you would like us to address in the blog, do please leave a comment, email us or give us a call and let us know.

When a couple who are married or in a civil partnership are moving towards a divorce or dissolution, sometimes regrettably the court has to be involved in assessing a fair division of the finances. It is rare that cases go all the way to a trial, but when the two people involved are not able to come to an agreement, obtaining a court order may be the only option. The court process can be long, drawn-out and expensive, and the costs of the procedure can weigh heavily on the family involved. (For more information on the process, click here to download our factsheet.)

Costs have long been a difficult issue in family law. In April 2006, rules came in that enforced a default position that each person would pay their own costs in financial proceedings on divorce. Unlike in other types of litigation, it has since become very rare for the courts to order one person to pay the costs of the other, although there are provisions to enable the family court to make orders for costs in the face of severe bad behaviour by one side during the litigation.

Before the rule change, the courts used a system whereby each side could be penalised in costs if he or she failed to accept a reasonable offer made by the other. The reasonableness of the offer was assessed by the judge after he or she had made the final order. In practice, it worked like this: say the court ordered the husband to pay a lump sum of £100,000 to the wife in final settlement of their financial responsibilities on divorce. After the order was made, the judge would ask the parties or their advocates to make submissions on costs. At that point, if the wife could show a letter containing an offer that she would settle for less, say, £75,000, the judge might make an order that the husband should pay the legal costs that the wife incurred from 21 days after the letter was received. Alternatively, if the husband could prove he had offered the wife £125,000 at an earlier stage – i.e. if the husband had been ordered to pay less than his offer – the wife might be ordered to pay the husband’s costs from that point on.

These offer letters, marked “without prejudice save as to costs”, were called Calderbank letters after the first reported case in which they were approved. Being ‘without prejudice’, neither side could refer to the offers made during the trial itself, but once the court’s decision was made and costs were the only remaining issue, the contents could be revealed to the court.

Solicitors tend to feel that Calderbanks were useful in litigation as they could inject a realism into financial proceedings and give a spouse pause for thought about whether they really would do better than a good and sensible offer. Solicitors know that a carefully constructed offer could change the dynamics of the negotiations and put proper pressure on someone to settle the case at an early stage, as rejecting an offer could lead to paying the other person’s legal costs as well as their own. Fully contested litigation can be truly damaging to the wider family, in emotional as well as in financial terms, and rarely helps parents co-operate about children.

Judges, however, tended to despair that the orders they carefully crafted to ensure each person’s and the children’s needs would be met after divorce could be thrown into chaos by an unexpected liability for costs arising from a Calderbank letter. It was this factor that ultimately led to the demise of Calderbanks and the introduction of the starting point that there should be no order for costs in financial proceedings.

The problem that family lawyers have noted since Calderbanks were abolished is that there is little incentive for some people involved in financial litigation to accept a decent offer from their spouse or civil partner, except to minimise their own costs. Anecdotally more cases are going to trial as there is now little risk of the court making punitive costs orders. With the government now desperate to reduce pressure on the family justice system and encourage people to settle their differences at the end of a relationship without recourse to the court, it appears the ‘no order for costs’ rule may not be considered to be serving the required purpose.

It was no great surprise to us to hear that the reintroduction of Calderbanks is being discussed in certain high-level family justice committees. We at CFLP would like to see them reintroduced as they can be very helpful in promoting settlement in family finance disputes and ensuring that each person is realistic about what might be achieved at trial. As long as each person in the dispute has a sensible legal advisor on board, Calderbanks can do a great deal of good in the process, particularly for future co-parenting arrangements. However, with the increase of litigants in person and the proposed removal of legal aid from family cases, the potential for exploiting a difference in financial and bargaining power may be significant. We would urge judges to use discretion when they consider the final impact of offers on the question of costs, but look forward to new era in court practice on family finance if Calderbanks do come back, in the hope more families will be able to settle their cases without requiring extensive court intervention.

What do you think?  Please leave a comment below of get in touch to let us know.

CMEC can make assessments of child maintenance and can also act to enforce payments, ensuring that the non-resident parent fulfils the obligation. The Government’s stated aim is to encourage parents to make their own arrangements for child maintenance without using CMEC, ideally through mediation. The system is expensive to run, and has been beset with problems from the start. However, there are some very positive aspects to the child support system, as we intend to explain.

The government’s idea is to make parents who wish to pursue a non-resident parent for child maintenance pay an upfront fee of £100 – or £50 if on benefits – to use CMEC to make an assessment of how much the non-resident payer owes. If the parent needs to use CMEC to collect payments too, the government suggests that CMEC should levy a charge on each maintenance payment before it is received by the carer. The end result of course is that less money goes into the hands of the parent looking after the child. Faced with the fees, the other knock-on effect is likely to be that many fewer parents bother pursuing their former partners in the first place. After the progress made in encouraging parental financial responsibility over the last 20 years, we feel this is a bitter blow to children’s prospects after parental separation.

Critics of the operation of CMEC/CSA – and there are many – have often failed to take into account the huge societal change brought about by the very fact of its existence. A brief history lesson: the CSA was the brainchild of Margaret Thatcher’s government, which saw that the dependency of single parents on welfare benefits could be relieved by imposing inescapable obligations onto the “absent parents” (as those parents who did not live with their children were then termed) to pay maintenance for their children to the parents with care. In keeping with the politics of the time, the scheme was harsh in its operation in the early 1990s, and a lone parent receiving benefits who refused to let the CSA pursue her children’s father without a good reason was stripped of part of her benefits payments. Computer problems, an incredibly complex formula for assessing payments, errors and a perceived failure to tackle difficult cases harmed the CSA’s reputation to the extent that it has recently had to be renamed for a new start (hence CMEC).

But nevertheless, in the nearly 20 years since the Child Support Act 1991 came into effect, there can be no denying that a sea-change has taken place in the attitudes of parents to supporting their children financially after separation.

In the 1980s and before, child maintenance was optional at best. The courts did what they could, when they were required to do so, but there was no suggestion that they had kept pace with the increase in the numbers of lone-parent families since the reform of the divorce laws two decades before. The Child Support Act led to a change in attitudes to the financial burdens of bringing up children. The CSA was ridiculed, but it was also feared. The terror of being sucked into the vortex of the Child Support Agency encouraged people to make financial arrangements where previously they might not have bothered. Children did benefit. As the years have passed and the formula has become more transparent, the agency better organised and the enforcement provisions improved, the idea of child support is stuck deep in the psyche of separating parents. Now, we rarely see parents who do not want to pay towards the expenses of the children they no longer live with; we are much more likely to see parents who take pride in doing so.

The last 20 years have seen other societal changes too with regard to children of separated parents. Children are more likely now to stay in touch with both parents after a separation; shared residence arrangements, backed by flexible working for both partners perhaps, are exponentially more common. Could the CSA be at the root of this too, even in part, we wonder? Although the courts and lawyers are always keen to separate money and contact with children, and rightly so, we cannot deny that those going through separation and divorce often naturally feel that one should be linked to the other. Parents forced to pay may have fought harder to see their children. Parents receiving financial help may have been more inclined to encourage contact with the non-resident parent. It’s a controversial subject, but we wonder if financial and social/emotional responsibility for children may go hand-in-hand more often than we all like to accept, and whether the Child Support Act may have had some part in starting off an era of more involved parenting for many, after separation.

CMEC is far from perfect. It may be expensive to run and bear the scars from 20 years of tinkering. But the idea that each parent is financially responsible for their children even though they may live apart is fundamental to improving prospects for some of the most disadvantaged children, and for the parents who look after them. We urge the government to look at other ways of offsetting the cost burden of the child support system. Also, we humbly suggest that the responsibility for paying any fees should fall not on the parent receiving the child maintenance and looking after the children, but instead on the parent who has to be pursued for payment rather than coming to an agreement in broad accordance with the published guidelines (unless for a good reason, of course).

(You may also like to listen to our Partner Simon Bethel on BBC Radio Cambridgeshire’s morning show last week talking about this issue: here from 1.8.30)

Do you have any experience of the child support system?  What do you think its effect has been, and what do you think of the government’s proposals to charge for using it?

Court proceedings between adults about children are rarely legally complex unless there is some risk to the children. If there are complications of this kind, mediation is unlikely to be appropriate. However, where the issue is a parental disagreement about where children should live or how much time they should spend with each parent, or particular matters such as where they should go to school or if they should have a medical procedure, the legal issues are often less complex than the emotional issues between the parents. As a result, the court may feel that it is not the appropriate forum for providing lasting solutions to these disputes and in many cases, that mediation may be a better forum for the families involved.

A judge’s job in these cases is to listen to each side and to make a decision based on what he or she feels is in the best interests of the child, taking into account certain specific matters set down by statute (see the information sheet on children orders from the family court for more details). Mediation, on the other hand, can provide a neutral arena where each person’s concerns about the relevant issue can be examined in the presence of an impartial 3rd party – the mediator – who has no decision-making role, but is trained to assist each person to understand the other’s point of view without making value judgments about who is right or wrong. The decision is up to the parents, who know the child best. The mediator encourages the parents to focus on the child rather than on the details of their own disagreements, and rather than setting them against each other as a court must do, seeks to assist them to work together to find a solution that everyone can live with.

So what happens at court when a mediator is present? The judge will see the parents, listen to what they or their advocates say, and decide if he or she feels that mediation might be suitable. If mediation is considered suitable, the judge asks the mediator to see the parents to explore avenues for settlement. If the mediation is successful and the parents manage to come to an agreement, the judge is there to approve it if necessary. If the parents feel that they need more time to mediate an agreement but would like to look into doing so, the mediator can give them the details of mediators local to them so that they can carry on working on the issue. And if the parents are unable to come to an agreement, their case can proceed in court and the judge will make a decision about what will happen.

As you can imagine, court is not the ideal venue for constructive mediation. By the time parents have got to court, they can feel at the end of their tether, and be determined that someone should make a decision for them, so that they can get on with their lives. Nevertheless, there are often successes. Even if the process is not immediately successful, offering mediation at court can open parents’ eyes to a process that they might not have been aware of previously, and can offer an avenue for compromise that they hadn’t previously seen. If their dispute proceeds to a court order this time, perhaps next time they’ll think about going to mediation instead.

We’ve touched on some of the advantages of mediation before (http://www.cflp.co.uk/christmas-contact-issues/), but the great strength of mediation in children’s disputes is that it can assist the parents to talk constructively to each other and develop strategies for communicating, with the focus on what is best for the children. If there are no risk factors, it is always best for the children that their parents are able to discuss matters relating to them in a business-like manner, whatever their personal feelings towards each other. Mediation is not a panacea and the mediator cannot force parents to agree, but if a court-based service can bring mediation to the attention of the people who need most to know about it, we are proud to be involved. In our view, offering mediation at court can help children of separated parents to grow up with reduced conflict in their lives, and is worthy of the donation of our time and expertise.

Do give us a call on 01223 443333 or email us at info@cflp.co.uk, or comment below, if you’d like to know more about any of the matters raised here.

It is with this background that the government is asking for comments on whether the current cross-government definition of domestic violence should be widened. It also seeks views from stakeholders on whether the current definition is being applied consistently across government, and if it is sufficiently understood by practitioners, victims and perpetrators. The consultation is open to the public.

You can find the consultation document here.

This is the current definition of domestic violence used by the government:
‘any incident of threatening behaviour, violence or abuse [psychological, physical, sexual, financial or emotional] between adults who are or have been intimate partners or family members, regardless of gender or sexuality’.

The government considers that this definition includes female genital mutilation, forced marriage and so-called ‘honour-crimes’. As you can see, it is confined to adults – an adult is any person aged 18 and over, and family members are interpreted as mother, father, son, daughter, brother, sister and grandparents; directly-related, in-laws or step-family.

The definition is important as it is used by government departments to inform policy development and, for example, by police, the Crown Prosecution Service and the UK Border Agency, to inform the identification of domestic violence cases. It is not a statutory definition. The courts have their own, slightly wider definitions: see for example Yemshaw v London Borough of Hounslow [2011] UKSC 3 in relation to housing, which adapted the definition used in a family law context, in the President’s Practice Direction (Residence and Contact Orders: Domestic Violence) (No 2) (2009) 1 WLR 251, para 2: “‘Domestic violence’ includes physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may give rise to the risk of harm.”

There are four options up for consideration in this consultation: that the definition of domestic violence remains the same; that the definition of domestic violence is amended to include coercive control (considered to be a complex pattern of abuse using power and psychological control over another including financial control, verbal abuse, and forced social isolation); that the government’s definition of domestic violence is extended to all 16- to 17-year-olds; and that the government’s definition of domestic violence is extended to all those under 18.

It is worth mentioning that this consultation comes hot on the heels of another government consultation about domestic violence and whether there should be a disclosure scheme so that people can find out whether previous partners have convictions. (This consultation is now closed but see here for details.)

The coalition has said in its strategic vision ‘Call to End Violence Against Women and Girls’ that it is committed to stamping out domestic abuse. Despite the unfortunately narrow title of the ‘vision’ document, we should all be committed to removing the threat of domestic violence and abuse from families in our communities. It is worth noting here that many people believe that the government’s proposed cuts to legal aid will have a significantly detrimental impact on the prospects for those suffering from and trying to escape domestic abuse (see here, here and here for example). It is probably not controversial to point out that a commitment to stamping out domestic abuse needs to be properly funded and adequately resourced throughout the process, both for victims and perpetrators.

If you have a little time, please do read the consultation and respond to it if you have views to share. We may not be able to save the futures of the adults and children killed and injured already this year by family members or former family members, but the more of us that make our voices heard when the government asks for input on matters of domestic abuse, the more seriously it might take the issue and the more futures we might help to preserve.

The consultation closes on 30 March 2012.

You can read the most recent judgment in the saga here, together with the earlier judgment by the same judge here which sets out a little more of the background. Briefly, the two couples met and got on well; they conceived by IVF and bore their first daughter, and then 4 years later, their second. Eventually, the father’s and his partner’s expectations of their involvement as parents seem to have become unacceptable to the mothers.  The mothers now consider the men to be demanding too much, a situation which has led to these court proceedings.

The dispute between the parents has also sadly led to a complete breakdown in the relationship between the men and the older daughter, although the younger daughter is not yet affected by the conflict to the same extent.

One of the most interesting things about the judgments in this case is the judge’s assessment of what the parents intended their respective roles to be when the children were conceived. The judge makes it clear that the court is bound to give consideration and weight to what was agreed at the outset; and goes so far as to state that the primary purpose of the order of the court is to give effect to that agreement (as long as it is in the best interests of the children to do so). Sadly, this was easier said than done for P and L.

The parents wrote nothing down about what was agreed regarding their shared children. Indeed there was a dispute about whether or not there was any actual meeting of minds on what would happen when the babies were born at all. On the other hand, in the years up to 2008 the relationship between the two sets of parents was good, which effectively set a precedent for the men’s involvement with the children.  The court considered it a strong indication that there had been a time when the involvement of the father and his partner was accepted and even encouraged by the mothers.

Unfortunately the judge observed that by the time of this hearing, the mothers were failing to give their elder daughter the emotional permission she needed to see the father and his partner.  As a result, she only wished to see them so that she could tell them she did not want them to be part of her life.  This was not something that the court could support.

The court proffered a stern warning to the mothers about their conduct in relation to the father and his partner. The judge even obseves that their opposition to the men having any kind of relationship with the girls is bordering on abusive behaviour that might soon necessitate the intervention of social services.

So how did the court resolve the dispute?  In the circumstances, the court felt unable to order that the older child should have direct contact with her father and his partner. Her opposition to contact is now so extreme that it would not be in her best interests to allow or order it to take place.  This is one of the terribly difficult and finely-balanced decisions the court makes every day in relation to children. However, the court did order that there should be contact between the younger child and the father, noting that perhaps this was the best way to encourage the older one towards an attitude where contact could take place one day.

The court’s mission, however, was a wider one than this. The judge makes it clear that he wishes to encourage people to think about the long-term practicalities of arranging to have a child together before that child is born.  The court’s aim is to stop other prospective parents from falling into the same type of harmful dispute. It also makes  clear that it is dangerous to attempt to fit every family into a traditional mould, and to try to apply stereotypical roles to what is inevitably each family’s unique situation.

In this case, the judge considered that the men were not in the position of a traditional separated father, but rather had agreed that the mothers would take the “primary” parenting role and the fathers a “secondary” role. The order made upheld this principle.

The idea of arranging to have a child with someone is not, of course, confined to same-sex couples. Aside from the use of surrogates, which is becoming ever more common, we know of situations where single women and single men have agreed to bear and bring up children together whilst living separately all the while, and never being romantically involved. Wherever one stands on the traditional morality of such a decision, from the child’s point of view there’s no reason why it shouldn’t be a perfectly acceptable way to grow up as long as the parents consistently put the child’s needs first and the child is not exposed to conflict; the same as in any family, separated, blended or ‘nuclear’.

As we’ve said before, it’s not necessarily what you do that makes the difference to children’s prospects – it’s how you do it. Change or objectively ‘unusual’ family circumstances are not necessarily in themselves harmful to children, but conflict certainly is.

We see all kinds of families at CFLP, in all kinds of situations. There are more non-traditional families around than you might think. Lesbian and gay parents face, in the main part, the same parenting issues as heterosexual parents.  Just like heterosexual parents, some do their jobs as parents well, and some badly. As so often when there is a dispute over children, it is a shame that the adults involved in this particular case cannot agree on a way forward to take the conflict out of their children’s lives, but it is clear that the court hopes that other prospective parents – gay or straight – who make an ‘arrangement’ to have children together will think carefully about the roles they envisage taking in the lives of those children, before they come into being.

(As a PS, because we’re on the subject, if you haven’t yet seen it do check out this remarkable clip of a young man talking about his personal experience of having same-sex parents in the face of growing opposition to gay marriage in America.)

We’re all quite used to the concept of fairness in family law because we’ve known for a few years that a division of matrimonial/civil partnership assets on divorce/dissolution must be fair. However, this is the first time that the concept of fairness has been allowed to play a full part in the resolution of disputes between cohabitants, where there is no specific, tailored framework of law regulating how differences are settled. Even after this judgment it is still necessary to use strict property law concepts for cohabitation disputes, but we can celebrate the fact that the court has recognised that the particular characteristics of an intimate personal relationship mean that there is a greater role for it to play in assessing what should be the end result, as distinct from its role in determining the outcome of a disputed commercial property transaction, for example.

On the other hand, it’s important also to recognise that the court’s concept of fairness doesn’t always chime with the ordinary man or woman on the street. This doesn’t necessarily mean it’s wrong, of course, but such a subjective concept is always going to invite debate.

So we wonder if now there will be more interest in using mediation for disagreements between former cohabitants. Previously, people involved in these disputes may have been reluctant to try to mediate a settlement between them because they might have known that the court had very little discretion in its judgment: the outcome would simply be a question of what the evidence pointed to, rather than a subjective evaluation of the surrounding circumstances. Now we have an element of fairness to work with, we hope that it will encourage people to work towards their own concept of fairness, where appropriate, rather than letting the courts impose one. Mediation can help by providing a neutral arena with an expert, impartial third party who can assist with discussions and facilitate the people involved finding a solution that works for them. So it can be your fair solution, and not the court’s. Fairness, as always, is in the eye of the beholder.

We do of course accept that the circumstances in which the court can justify imposing the “fair” solution the Supreme Court discussed are limited for cohabiting couples, and that the decision could do nothing to affect the wider matters of cohabitation policy that the government has recently said it will not have time to look at in this parliament. Still, the Supreme Court has provided a chink of light, and it’s one we should focus on. We do believe that the concept of fairness may well improve outcomes for those economically disadvantaged when a cohabiting relationship ends; greater prominence for mediation as a process for resolving these disputes could enhance those outcomes, at a lower financial and emotional cost than the court process. Whose concept of fairness would you want to apply to you?

There’s a misconception that it’s generally women in their 60’s who are choosing to end their marriages, often when their husbands retire and start hanging around the house more. This is “backed up” by statistics that show most of the divorce petitions in this age group are filed by women.

It may be true that women are taking the initiative, but in fact women are generally more likely to be the ones to start divorce proceedings in any age-group. It doesn’t necessarily mean that they’re the ones taking the decision to end the marriage. For example, wherever possible we as solicitors or as mediators would try to help the people involved to decide the terms of the divorce process that will suit them best – often, particularly where gender roles during the marriage have been quite traditional, the man will ‘fall on his sword’, admitting adultery or unreasonable behaviour on an agreed petition filed by the wife to facilitate a quick process. This means that the wife is statistically shown as the divorce petitioner, whereas the original decision to divorce may not have come from her.

Often, people don’t realise that it really doesn’t matter who files the divorce petition, as long as the question of costs is negotiated and it contains no contentious material. It generally has no bearing on the financial process, or indeed to any arrangements made for the children.

Older couples may find that their financial circumstances are more complicated, and certainly benefit from specialist advice when trying to create two households from one. Pensions may be the most valuable assets and may already be in payment, which means it is a more complex operation to determine a fair division. Another specific problem that affects those starting again at a more mature stage of life is rehousing. Although it is common for there to be more equity available for rehousing due to the upsurge in the housing market over the last 30 years, there may not be enough comfortably to provide housing for both people at an appropriate level, and it’s difficult to get a mortgage in your 60’s. An expert overview is essential to enable both people to reach a settlement that will best enable them to start again with dignity, in comfort, and with reasonable hopes for what the future holds.

It may also be more important to consider whether either or both people need any extra emotional support during the process, as they face the challenges of changed expectations both for their own futures and perhaps, too, the financial futures of their children. When couples have spent much of their lives building an inheritance for their children and then realise they need to spend it on housing and supporting themselves in two households instead, it can be quite a blow.

Life is long. Marriage was invented when life expectancy was much shorter and “forever” might have meant 20 years if you were lucky. Now it’s not terribly unusual to find people having had two marriages of 25 years or more duration in a lifetime. There are success stories for those who divorce in late middle-age, and sad ones too; but in every case, expert advice can make all the difference to coming out of the process with faith in the future, whatever the future holds.

It doesn’t help that every new year the media whips up the usual storm to accompany the windy greyness outside: first working day in January is ‘divorce day’, they say (see here or here for example). Couples rush to divorce after Christmas and New Year Marital Nightmares, scream the papers: couples who cannot bear 10 days off work in the same house finally choose to divorce at the beginning of January. We’re often asked: is it true?

Like all these things, there are elements of truth in the story if you look hard enough. There is usually a bit of a new client spike in January. Christmas is a family occasion with choices to be made at every turn: choices about how much money to spend, how much of the domestic work each party does and about the presence or absence of wider family members. These three things – finance, housework, in-laws – are noted flashpoints even for generally happy couples. Some couples do find it difficult to endure the festive season when their relationship is already foundering, but this is not the only reason people choose January to contact a family law solicitor or mediator about the technicalities of a separation.

Often, a separation is something that couples have been discussing between themselves for quite a while. They may have gone through relationship or separation counselling, or may have already physically separated without the assistance of professionals some time ago, but have chosen to leave the formal or legal aspects of the separation until “the new year”. The arrival of a different digit on the end of the calendar is a potent symbol of change and of a new start, new opportunities, new possibilities: traditions of resolutions exist in almost every society at the start of the new year. It seems psychologically easier to draw a line in the sand at the end of the old year and try to be positive about the future at the beginning of the new one, whatever adversity one might face.

This psychological effect may go some way to explaining the so-called January divorce spike – for many people, it’s the culmination of months or years of work and careful assessment and decision-making, rather than a specific reaction to the Christmas chaos. But it’s important to realise that seeing a solicitor or a mediator doesn’t set you on an unalterable course to divorce. We see people at all stages of their relationships: before, during and at the end of marriages, civil partnerships, cohabitations or even parenthood. We’re happy just to spend some time explaining the options, discussing ways forward and who might be best placed to help you achieve your goals, whether that might be a reconciliation, an elegant disengagement, or an agreement to review the situation in the future. Whatever your circumstances, we will do our best to support you and advise you in the most practical and cost-effective way.

Our advice is to ignore what the papers say and come and tell us your own story. From all of us at Cambridge Family Law Practice, we wish you a happy and positive new year.