Bird Nesting – Co-parenting Trend or Creative Solution?

Bird Nesting – Co-parenting Trend or Creative Solution?

It might be said that a reliable barometer of trends is when they become storylines in TV soaps or dramas. The ITV thriller “Our House”, adapted from a novel of the same name, starring Martin Compston and Tuppence Middleton included “bird nesting” as part of the plot. The couple were living in a large period property in London with two young children, when the wife discovers her husband “in flagrante” with their neighbour. The parties separate and decide to rent a cheap property, so that they can each take it in turns to care for the children in the family home on rotation. The family home is therefore preserved for the children and reflects what happens in the natural world which this concept takes its name from.

Bird Nesting Agreements

In order to have the best chance of success, the couple would ideally be amicable and on good terms. In the drama, the couple are seen with a third party drawing up a “Bird Nesting Agreement”. This is not something that family lawyers are routinely instructed upon and it is much more likely to come up in mediation due to the bespoke nature of this process. Nesting could also become part of a general co-parenting agreement and possibly a recital to a Court Order under the Children Act. However, it is not something a Court will order against an unwilling participant to facilitate child arrangements.

Ground Rules for Bird Nesting

In terms of a second home for the “off-duty” parent, a purchase may only be possible for reasonably well-off parents. There would also then be the issue of how that property is owned and funded (unless purchased out right) as it may be problematic to enter into another mortgage. It might be possible to make adjustments to an existing property to allow the parties to live separately. The alternative would be to live with in-laws, friends or perhaps in a house share. However, that will invariably be more of a short-term solution.

If property is to be shared, it is sensible for there to be ground rules. For example, agreements are likely to be required on the following:

• Time spent with the children, including holidays and special occasions
• Parenting “rules” and what boundaries are appropriate to enforce by both parents with the children to maintain consistency
• Payment of rent, mortgage and bills
• Purchase of groceries and the sharing of food in the respective households
• Cleaning of the properties
• Maintenance of the properties
• Gardening of the properties
• Rules about new partners
• Changing the linen if one bed is being used in the second property
• Care of pets (including dog walking)
• Respecting the privacy of the other

It is easy to see how this kind of approach could succeed for the right couple but equally how it might unravel. This is what happens in “Our House” when the wife discovers the house has been sold from under her, which will not be a risk for most co-owners (absent criminal actions). Even if you are not a co-owner of a property, it is possible to register a Matrimonial Home Rights Notice to protect your position. This will mean you are notified is there is an attempted sale of the property.

It is unlikely to work if there is unresolved conflict or insufficient financial resources. In the end, it will come down to the couple and their willingness to make it work. The concept has been around for some time in the USA and data shows that this is increasing in popularity in Australia, the Netherlands and Scandinavian countries. This is likely to be more popular with younger generations as shared care becomes commonplace.

Pros and Cons of bird nesting

Advantages:

• Preservation of a school catchment area
• Useful transition period for the family and for the children to get used to their parents being separated
• Provides stability for children as they can keep the same routine/bedroom/belongings/clothes and means only one set of everything needed
• Positive for children’s mental health as can keep same friends, school and support system
• Reduction of commute between homes for children, especially if one parent wishes to move further away
• No need to pack a bag for the child or for things to be forgotten
• Preservation of an appreciating asset and avoiding costs of moving/taxes, especially if London based
• Emphasis on remaining amicable on separation and making it work for all
• Parents carry more of the emotional burden of divorce than the children
• Cost effective
• Buys time and provides breathing space to reflect
• Suits modern families

Disadvantages:

• Difficult for parents to move on and establish a new home/life
• Inability to achieve financial clean break while assets remain shared
• Confusing for children and false hope of parental reconciliation
• Lack of certainty for children and parents
• Practical difficulties arising from sharing a home
• Difficulties with moving on with new partners
• Increased risk of anxiety and depression for the “off-duty” parent living in the more modest property (ie. a one-bedroom flat versus a comfortable family home)
• Risk of poor mental health for parents
• Limited freedom for parties and inability to cut ties and communication
• Not viable in the long term

Bird nesting is a helpful option for separating couples but is only likely to work in the short term as the urge for certainty will be overwhelming for most. If you are thinking of trialling nesting for your family, you should always take legal advice as to the implications, risks and protections you should put in place. If you would like further information, please contact the family team at Anthony Gold LLP at mih@anthonygold.co.uk.