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Rising cost of divorce encourage couples to ‘nest’ together

Splitting couples are facing a rising cost of divorce with a big increase in court fees, and many are facing up to the challenge of asset-sharing and high property prices by turning to novel solutions to deal with the change.

One of the new approaches to parenting after divorce is what’s being called the bird’s nest approach, a shared custody arrangement where the children stay at home and parents move around them, as depicted recently by TV programmes The Affair and Transparent.

The emphasis in bird’s nesting is on parents doing the moving, and taking the inconvenience, rather than expecting children to do so. Parents benefit by needing to have only one property large enough for the whole family. The arrangements are often developed through mediation and are being supported by the Family Courts, reflecting the general shift in attitude away from sole custody to shared parenting.

Whether or not couples opt for family-friendly practices such as bird’s nesting, they will still be affected by the recent jump in the cost of applying to the courts for a divorce. The 34% rise from £410 to £550 has been introduced by the Ministry of Justice to help pay for the overall cost of administering justice. And while many family lawyers have complained that the rise is unjustified, it’s just one of a series of changes that are pushing up the cost of getting divorced.

This is a big jump in the cost of going to court for a divorce. That may be manageable for the majority of couples, but what is less easy to control is overall costs. We’ve seen big cuts in legal aid for divorcing couples, and as a result some are trying to manage their own route through the courts, which they may find to be a major challenge. Others may find it difficult to contain overall costs if an ex-spouse is set on fighting, rather than agreeing. Obviously, the aim should be a fair and reasonable outcome and that usually involves finding some middle ground.

That’s where mediation can make a big difference. Putting children first is the most important thing for any couple, hence the rise in different approaches, such as the so-called bird’s nest arrangements. What is most important is being open to collaborative mediation, as that can help bring a couple together to achieve a positive outcome for everyone, through negotiation.

In recent years, some divorcing couples have used up the bulk, or even all, of the assets under dispute due to the costs involved in their court battles. For example, in the case of Piglowska v Piglowski, the couple spent more than £128,000 fighting over a joint asset pot of £127,400; or the 2008 case of KSO v MJO & Ors, where costs consumed assets worth more than £800,000, forcing the husband to declare himself bankrupt. In a more recent 2014 case, a couple spent nearly £1m fighting their case, representing almost a third of their joint assets of £3m, accumulated over an 18-year marriage.

The UK may also find itself following another US-led trend towards loan-funded divorce. Specialist lenders are increasingly being used to fund divorce proceedings, where one or both of the divorcing couple cannot realise assets to pay for the legal costs. In the UK, some firms have already moved into the market, with lending currently being offered for up to around one third of the expected divorce settlement.

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