Two weeks ago, as a nation, we were thrust into new and unfamiliar territories of social distancing and self-isolation. Two weeks later and I am beginning to feel that the dust is starting to settle on this new reality. Whilst it is uncertain as to how long our lives will be held captive by Covid-19, what is clear is that the current way of life we’re faced with is not going away anytime soon.
Over the weekend, we’ve had many enquiries from members of the public concerned about how Covid-19 is affecting or will affect their divorce or separation, including how it will impact upon access to their children during isolation or how the pandemic will impact upon any financial settlement on divorce. It seems that over the last fortnight, we’ve all been holding our breath waiting until it’s safe to breathe again and whilst it is far from safe, many of us have come to the conclusion that life must go on even in this new world of uncertainty and that includes taking appropriate legal advice.
To help piece together how Covid-19 will impact upon family legal disputes, I have considered what changes have and will take place within the family law arena over the coming months.
- Family Courts are closing their doors
There has been clear guidance from the President of the Family Division Sir Andrew McFarlane that family court hearings should by default take place via telephone or video call where possible. In person hearings where all parties are present including the Judge should no longer be taking place. If you are involved in family court proceedings and have an upcoming hearing, it is advisable that you check with the court, or your solicitor if you have one, to find out how the hearing is to take place and who is responsible for setting up the telephone or video call.
- Family Solicitors are working from home
I can speak for my whole firm when I say, our solicitors are now working from home until further notice. This will be the case for most family solicitors where home working is possible. Therefore, during periods of isolation and social distancing it is unlikely that you will have a face to face meeting with a family solicitor and instead telephone, video calling and email will be the used methods of communication regarding your case.
- Family Mediation is moving online
If you are currently engaged in family mediation or are considering it as a way of resolving your legal dispute, you should be given the option to conduct mediation using an online platform such as facetime, Skype, Whatsapp, Zoom or Microsoft teams. This means that rather than sitting around a table with your ex-partner and the mediator, you would each hear and see each other from separate locations via video link. As a mediation service, we have offered and conducted online mediations for some time albeit in small numbers, however as of today all of our mediations are progressing through online mediation.
- Financial negotiations on divorce may be postponed
Depending upon the assets involved in your divorce case, it may be advisable to delay progressing towards a financial settlement with your spouse until you are able to fully understand how the asset base is going to be affected by covid-19. This will be of particular significance where offsetting of assets is being considered e.g. a business against an investment portfolio or a house against a pension pot. Specialist advice on how these assets may be impacted upon should be sought.
- Assets on divorce may need to be revalued
If you and your spouse have already had your assets valued and exchanged that information (financial disclosure) as part of financial negotiations, this may need to be revisited. Valuations of assets on divorce at the beginning of the year for example, prior to any disruption to the UK economy caused by covid19, may be dramatically different from valuations that those same assets could achieve today and this needs to be carefully considered as part of any financial negotiations.
- The variation of Financial Orders
Where a financial settlement was negotiated and formalised by way of a legally binding financial order prior to covid19 but not yet implemented, one or both parties may be looking to ways in which that order could be varied. It may be for example that an offset was agreed, such as the husband retaining his business in consideration of the wife receiving a lump sum. Post covid19 it may be that the husband can no longer raise the lump sum to pay to the wife or he may consider the lump sum should be reduced to reflect the fact that his business is worth a lot less post covid19. Parties can agree to vary a financial order by consent however if one party refuses, then an order can only be varied by the court. For the court to vary a financial order, there would need to be what’s known as a Barder Event. Whether covid19 will be considered a Barder event, which would undoubtedly open the floodgates to the potential variation of many financial orders, is yet to be seen and would need to be considered on a case by case basis. Specialist advice from a family solicitor should be sought.
- You may need to adjust your childcare arrangements
The Government guidance is clear that the rules of isolation and social distancing do not prevent a child from spending time with both parents in their respective homes. However, the Government also indicated that it is preferable for any moving between two homes to be as infrequently as possible. Therefore, it may be sensible to consider whether reasonable adjustments can be made to the current arrangements to reduce the number of handovers each week for example whilst covid19 remains a risk factor. Do remember however that such changes to the existing arrangements should only be made with the consent of both parents. If one parent refuses to consent, you may wish to consider mediation as a means of resolving the dispute.
- Finally, expect delays.
Pre covid19, the family courts were already under intense pressures and under resourced. I’m afraid to say post covid19, the situation will only worsen. Therefore, if you are within the family court process delays to your case should be expected.
It is abundantly clear that covid19 has changed the landscape of the family law arena. The full impact is yet to be seen and whilst some of its aftermath will be short lived other changes may well be here to stay.
If you are experiencing any of the issues which I have discussed within this blog, please do get in touch with our specialist family solicitors in Leeds on 0113 322 9222 or enquires@consilialegal.co.uk.
Laura Clapton – Director and head of family department
31st March 2020