Family Solicitors

‘Bird-nesting’ is a recent trend in ancillary relief arrangements, which seeks to combat the twin problem for divorcees of impractical co-parenting arrangements and unrealistic costs for separate housing. The primary motivation behind this arrangement is to reduce the destabilising effect of divorce on children in terms of moving between homes. But where does this arrangement fall within the context of the key principles of UK ancillary relief proceedings?

What is bird-nesting?

The arrangement involves the former matrimonial home not being sold and instead, the parents take it in turns to occupy the home. A study in 2019 from University College London found a 16 per cent rise in emotional problems for children between the ages of 7 and 14 whose parents separated. Bird-nesting allows the child or children of the family stay in the home and do not have to move between houses. This normally involves a second small, short-term rental property being shared by the divorced couple and the parents rotating occupation between this dwelling and the family home. Section 25 of the Matrimonial Clauses Act 1973 contains a list of several factors which must be considered in decisions regarding matrimonial assets. The new ‘bird-nesting’ trend seems to be a move towards prioritising the factors of the ‘welfare of the child’ and the ‘standard of living’ that the family has become accustomed to. The arrangement seems to undoubtedly challenge the leading case law principle of achieving a ‘clean break’ when dividing matrimonial assets. However, it is not a new phenomenon for legal decision-makers that the ‘clean break’ principle is not feasible in every family situation. For example, Section 24(1) (b) provides for a ‘Mesher order’ settlement of property, whereby a parent is allowed to stay in the family home until a child reaches adulthood. ‘Bird-nesting’ appears to be an extension of the rationale underpinning these agreements, namely to protect the stability of home life during their child’s minority.

The Pros and the Cons of Bird-nesting

An advantage of this arrangement is that it is much more cost effective for families. Instead of feeling the need to create two new family homes, the divorcees can downsize in to a much more modest property to cater for one person’s needs on a temporary basis. With recent soaring house costs and the average two-year fixed mortgage rate now close to 6%, lawyers are seeing a lot more millennial divorcees trying this arrangement out. However, there are of course, some lingering concerns about the practicality of these arrangements. To start with, it is still an arrangement very much aimed at middle-class families. Lower income families may need the sale proceeds of the family home or rental reduction for their own living expenses, or may not be able to afford a second dwelling at all. Another obvious prerequisite for the workability of this living arrangement is that the parents can still maintain an amicable enough relationship to work out agreements and be content with the sustained overlap of their family lives. Sadly, this is still not the case for many divorcing couples. However, it is hoped that the ‘no fault’ divorce law changes of the Divorce, Dissolution and Separation Act of 2020 will reduce post-divorce parental conflict. A remaining concern is that the benefit for children is negligible and merely shielding the child from a new way of modern living, which can sometimes be confusing. Divorce rates are rising, with a 9.6% increase between 2020 and 2021, and having two family homes is increasingly common in modern society. As with all ancillary relief arrangements, the answer is never straightforward and the decision is always circumstantial. Bird-nesting may not be ideal for everyone, but it is certainly an attractive new prospect for the types of family situations it is aimed towards. Our family department is ranked and recommended in the prestigious Legal 500 guide for the quality of solicitors as well as its diversity of experience across the firm. We understand the complexities of navigating divorce and separation, especially where children are involved. If you have been affected by any of the issues raised by this article, or would like to explore the possibility of ‘bird-nesting’, please contact our expert family and childcare team for advice and assistance. Together we can assess your options and find a solution that suits you.

About the Author

Una Graham is a Caseworker in the Family and Child Care Department based in our Manchester Office. She works under the supervision of director Meena Kumari. Meena is a Family & Childcare Director and Solicitor based in our Bradford offices. Recommended in the Legal 500, Meena possesses a wealth of experience in complex children cases with an international element or where the children have special needs. She actively encourage parents to resolve disputes regarding their children in a non-confrontational manner. For advice or assistance on a family matter, contact Meena Kumari via email at MeenaKu@duncanlewis.com or via telephone on 020 7923 8517.