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Shared Parenting, Post-Separation: A Subtle but Powerful Change in the Law

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Back in June of this year, the government announced a consultation to change the law regarding the amount of time children spend with both parents post-separation...

In recent history, many children have made their main home with their mother after their parents' separation. This reflected society's views that a woman's place was at home raising the family whilst her husband (now 'partner') worked to financially support the family.

After separation, these primary roles often remain largely unchanged save for mother's often needing to work to support themselves and the children. But like any system, it was open to being abused.

Mothers could use their role as 'main carer' to manipulate the children's views of their father, and fathers could be sure of causing untold hurt to their children and inconvenience to their former wives and partners by changing plans to see the children or not showing up at all.

Society's views of which of the sexes should be homemaker or breadwinner are now very blurred. Anything goes.

It's now not unthinkable for a man to be a 'house-husband' whilst women are the major earner in the family. And family law is gradually catching up with those changing views.

With more fathers than ever now being very 'hands-on' in their children's upbringing when the couple are together, why should it be any different if the couple separates?

In June, the government began a consultation, '... inviting views on the Government's plans to introduce legislation to reinforce the principle that most children benefit from the ongoing involvement of both parents after separation'. Respondents were asked to consider the potential of four different approaches to promote post-separation shared parenting, and sought views on the impact of this legislation.

The full response document can be found here.

Overall, opinion was that a legal 'presumption' of shared parenting was the solution rather than a general 'principle' of shared parenting or 'involvement' of both parents.

As a London divorce lawyer, I have been supportive of the presumption of shared parenting since this was raised in the consultation announcement. There have been concerns by some that it will lead to children's welfare being impacted by the rights of parents ranking above the best interests of children but there is no foundation for such concern.

The new law will explain that the purpose of the change is '...to reinforce the importance of children having an ongoing relationship with both parents after family separation, where that is safe (my emphasis), and in the child's best interests'.

The change in the law is so very subtle, and the general 'checklist' of factors the court must apply when deciding any issue regarding a child will remain the same.

It is the starting point of a presumption of shared parenting that has a massive psychological impact on the parents; for the parent with whom the child spends greater time, it is a constant reminder that the other parent has an equal say in their upbringing. And for the parent with whom the child spends less time, it reassures them that their rights and responsibilities remain in place and are honoured.

It will also address the bias that is felt by one parent towards the other in disputes regarding children.

There have also been concerns that the 'shared parenting' presumption will mean children spending equal time with both parents but this is another legal myth.

Shared parenting can often mean two days a week with one parent and five with the other, but the description of this arrangement is where the advantage is to be found. Calling it 'shared care' is a constant reminder that these children are the product of both parents, not to be used to score points against an ex, not to be 'claimed' as belonging to one parent and not the other, and most definitely not to alienate the other parent.

This change has been a long time coming. I believe it will mean fewer children disputes as parents recognise and accept the new presumption, or disputes settled quickly and with fewer costs. Time will tell...

We now just await the date of when these legislative changes will be made.

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Top London divorce lawyer, Deborah Jeff, is the Founding Partner and Head of Family at Seddons solicitors, dealing with high-profile divorces. As a Family Lawyer, she specialises in such fields as prenuptial agreements, with the majority of her work concerning complex financial disputes within divorce.