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Divorce and the Christmas dilemma

The holiday period can give nightmares to separating families, and it's best to ensure all parties agree, with the help of your lawyer, on where the children should spend the year end break, writes Katie Male

Figures released by the ONS in October reveal that divorce rates have risen for the first time since 2009.  In 2016 the number of divorces among opposite-sex couples in England and Wales increased by 5.8 per cent compared with 2015.

For families that are going through a separation or divorce, Christmas can be an especially difficult time particularly when children are involved. When one household becomes two, where and with whom will the children spend Christmas day? What about New Year's Eve and the rest of the holiday period?

It is common for separated parents to agree that the children will spend half the holiday with one parent and half with the other. Exactly how the children's time is split will in large part depend on logistics, for example how close the parents live to one another and the practicalities of ferrying them back and forth.

As for Christmas day itself, some families agree that the children will alternate between parents year on year. Alternatively (or in addition), one parent might host a 'second Christmas' on Christmas Eve or Boxing Day, enabling the children to have a special day with each parent and that parent's wider family.  In some cases it may be possible for the children to see both parents on Christmas day itself but, where this is not feasible, the parents could agree that there will be some contact between the children and the absent parent on the day, for example by Skype.

When negotiating, separated parents must not forget that the children's best interests should be their guiding principle.  Whatever agreement they reach, it is likely to involve a compromise for one or both parents. Parents are advised to listen to their children's wishes but recognise that it is not fair to ask the children to choose between them.  It is helpful to make arrangements as far in advance as possible, record them in writing (for example in an email) and stick to them. If possible, it might be worth agreeing a default position for future Christmases to avoid the same disagreement arising every year.

It may be tempting to over-indulge the children, especially the first Christmas after a separation, but parents should refrain from competing with each other with regard to meals, presents and experiences. If one parent wants to take the children abroad for Christmas, they should notify the other parent early and allow plenty of time to agree arrangements.

If the parents cannot agree, they could instruct solicitors to negotiate on their behalf.  This can help to defuse emotional tension and concentrate focus on the key issues.  Alternatively parents could try mediation. A mediator can help the parties to reach an agreement directly but cannot force them to stick to the agreement thereafter. Finally one of the parents could make an application to Court to determine the issue. Any decision made by the Court will be based on what it considers to be in the children's best interests. However a Court application should only be made in extreme cases as a last resort. Not only can litigation be lengthy, stressful and expensive, but the Court may refuse to adopt either parent's proposal and instead impose an outcome that neither parent would ever have chosen. This, if nothing else, should provide a good incentive for those parents who are struggling to reach an agreement.

Katie Male is a solicitor in the family team at Boodle Hatfield