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July 26, 2022updated 02 Aug 2022 6:12am

‘Birdnesting’: The HNW divorce trend featured on BBC drama The Split

By Alec Marsh

‘Birdnesting’ is catching on among divorcing couples with children – but does it work in practice? Alec Marsh assesses the pros and cons

An episode of the third series of BBC family law drama The Split featured a storyline inspired by ‘birdnesting’ (or simply ‘nesting’), in which the children of a divorced couple remain in the family home, with the parents rotating in and out in tandem with their childcare commitments. Said to be a practice of US origin and popular in Scandinavia, this approach – so named because the parents act as birds, flittering back and forth to attend to their young in the nest – is reported to be on the rise here in the UK.

Indeed, The Economist recently reported on a Co-op survey that showed 11 per cent of separated or divorced British couples had tried it – although those findings date back to 2016. Advocates of birdnesting say it reduces the emotional impact and practical disruption of divorce on children by allowing them to remain in the familiar surroundings of their bedrooms and homes – making them less likely to have to change schools or lose home-based friendship groups.

Crucially, it saves the aggravation of being shifted between new parental establishments and of logistical concerns over toys, uniforms and everything else that inevitably follow. James Stewart, head of the family department at Penningtons Manches Cooper, became aware of birdnesting about four years ago when one of his clients, half of an HNW Anglo-Italian couple, entered into such an arrangement. The couple were able to do so because both parties had properties in addition to the marital home. Stewart says the approach worked well for about three years but ‘went awry when the parties moved on to other relationships’.

Aside from the fact that ‘you need three homes’ to make it work, Stewart points to all sorts of logistical difficulties in the running of the mutual household, as well as privacy issues arising from sharing the space (do you really want to use the same bed as your ex?). And, of course, the parties involved need to be able to talk to one another in a civilised fashion, which isn’t always possible after an acrimonious split.

As a result, Stewart is dismissive of birdnesting – ‘a buzzword, just like conscious uncoupling was a few years ago’ – but he accepts that on a short-term basis (and not necessarily as advocates see it) it is ‘happening all the time’ while children remain in the family home as it’s being sold – with parents coming and going. In a very important way, however, he believes it is contrary to English divorce law, which supports a clean financial break in divorce matters where possible so that each party to can get on with their life independently. ‘I think it’s only ever going to be popular with a very small minority of HNW parents and I haven’t actually seen it work in the long term,’ he adds.

In February the Court of Appeal offered a contribution to the discussion by handing down a judgment in the case of A, B and C (Children: Nesting arrangement). The court ordered the end of the birdnesting arrangements in question, in part because ‘it gives false promises to the children as to the reality of their parents’ separation’. This is also the principal objection raised by Claire Filer of Irwin Mitchell, who has seen a handful of cases since she qualified in 2004. She believes it can prove useful as a three- to six-month transitional arrangement to help children adjust to changed circumstances. She knows of at least one family lawyer who employed this approach herself in her own divorce, successfully.

However, Filer warns: ‘If nesting continues past that short transitional period, children won’t necessarily get the reality of the fact that their parents have separated. For most children whose parents have separated, the only thing they really want is for their parents to get back together and that often isn’t going to happen, so if you’re creating this environment where you’re prolonging the idea of the family home in which everyone is there – albeit not at the same time – you are potentially fuelling their fantasies that their parents are going to get back together again.’

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Justine Osmotherley, head of family law and the private client offering at Clarion in Leeds, is more positive, but still gives birdnesting a shelf life. She has seen five or six examples of it since a client tried it about seven years ago. Despite Osmotherley’s initial reservations back then, the client and her ex-partner bought a second house with separate bedrooms and then rotated between that and the marital home – an arrangement that lasted more than three years and proved helpful for their children.

‘They made it work incredibly successfully,’ recalls Osmotherley, who advises couples considering it to put a detailed plan in place to manage the marital home to prevent conflict. ‘I don’t think it is for everybody,’ she adds. ‘As it moves on I think there is probably a natural time for that arrangement to end, but that circumstance in my experience isn’t the parties falling out; it’s a serious, settled relationship with someone else who you want to spend your time with and who you want to introduce to the children.’

Illustration by Jacob Stead

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