Coping with Coronavirus: Divorce and Separation Family Law Update

Dealing with divorce or separation is stressful at any time of life but especially so in current circumstances. Here are some questions we are regularly being asked at the moment in the hope they answer any queries you may have.

[tela_accordion title="Should you carry on with your divorce/separation?"]We are dealing with a high volume of cases for people who still need to finalise their divorce and separation. Houses have been sold, the proceeds of sale are on deposit and need sharing, and settlements have already been, in part, implemented.We also continue to speak with people who need to make urgent applications to the court, for example, where one person may have stopped paying any maintenance which requires urgent action.There are, however, certain situations where sorting out the finances as part of the divorce process should be put on hold. Every case is different but, if assets such as property, investments, businesses and pensions need to be valued, there may be very good reasons why proceeding now, with the drop in values, would not be a wise decision.We are regularly discussing these issues with our clients and with people who are looking for a second opinion about their position.[ela_accordion][tela_accordion title="Are court hearings still going ahead?"]Yes, the Lord Chief Justice has said that, wherever possible, court hearings need to go ahead. There have been some problems with recent hearings whilst every one catches up with the right IT software to use, but the situation is starting to settle down now with most hearings being dealt with by telephone or video conferencing facilities.On 17 March 2020, Mr Justice Mostyn released a statement on the effect of the current outbreak of COVID-19 on the financial remedies courts. Of particular note, is paragraph 2 of that statement, which states that:

“Parties should be encouraged to have their FDRs [Financial Dispute Resolutions] done privately. Such private FDRs should routinely be done remotely. Most barristers' chambers and solicitors' offices have facilities to enable FDRs to be done remotely”.

We have been working really hard, in tandem with the barristers we work with and the court, to ensure that we can offer a comprehensive service for court hearings and private FDR hearings including:

• Setting up the software for telephone court hearings
• Arranging for fixed fees for judges and/or advocates to conduct the private FDRs
• Arranging virtual meeting rooms
• Providing pre-conference meetings with your barrister
• Securing virtual negotiation rooms for discussing the settlement details for cases.[ela_accordion]

[tela_accordion title="Can you amend a recent final financial order if things have now changed?"]Sometimes, even before COVID-19, it was possible to ask for an order to be changed if something had happened since the making of the order that made the order fundamentally unfair. This is called a Barder event. There has been some discussion lately about whether this can apply to recent financial orders made before the COVID-19 lockdown.The common view is that there needs to be four things before a Barder event can be considered:

1. A new event unforeseeable occurring after the order is made
2. It needs to have happened within a short period of time after the order was made
3. An application for leave to appeal would have to be made swiftly
4. The interests of a third party must not be adversely affected.

Judges are likely to be inventive in seeking not to allow applications so as to not cause a flood of claims.  However, if there has been unforeseeable and unforeseen event - a bolt from the blue - as a result of COVID-19, then an application to vary the original order can be considered. It is an objective test.Each case is different and the timing of the order is important. Swift action is required.[ela_accordion][tela_accordion title="Can we still prepare pre-marital agreements?"]Yes, we continue to see a steady request for these wealth preservation agreements. It is sad to see couples having to postpone their special day, but the preparation of these important documents will help couples in the future, should they decide to separate, protect their wealth if the agreement has been properly prepared.[ela_accordion][tela_accordion title="Can we speak with both husband and wife if they have queries?"]We have seen a real increase in couples wanting to speak with us together about what to do in their particular circumstances. Any relationship that was already under strain before COVID-19 now has the added pressure of many couples having to remain under the same roof whilst we are all in lockdown following the government's advice.We provide a unique information service for couples who want to talk with us together to get advice about what to do next and what issues to take into account in their particular circumstances.[ela_accordion][tela_accordion title="What other ways are there to help families resolve disputes?"]Mediation is a great alternative dispute resolution option, particularly useful now during the government lockdown measures. Family mediation can be conducted by online video and other forms of digital platforms, and will help you to identify and clarify all matters for consideration. Common topics for mediation include childcare arrangements and co-parenting plans, and the financial issues that have to be sorted out as part of a divorce or separation. Mediation can also be useful in helping parents restore communication where it has broken down. If both parties agree, proposals reached in mediation can be converted into legally binding court orders by their solicitors. Mediation happens at the pace the parties agree. It is a voluntary process and therefore the mediator can work with you both to a timetable that meets your requirements.We will help you both discuss all of the options. Most importantly, we always keep the needs of any children at the forefront of the discussions.Arbitration is another way to ask an independent person for help in resolving any dispute that has arisen and needs to be sorted out. We have a qualified arbitrator who can offer this service and, if for any reason we are unable to help, we know other reputable arbitrators who we will refer you to.Digital and telephone meetings - Using video call platforms can be a good way to get lawyers and clients talking with each other to help everyone to try and reach a swift and amicable agreement. Due to the recent crisis we have seen an increase in these types of meetings where clients, for whatever reason, need to progress sorting out their divorce and separation swiftly.[ela_accordion][tela_accordion title="What if you have property assets that need to be valued?"]The pandemic poses problems for property valuations that need to be done. The Royal Institution of Chartered Surveyors (RICS) recognize this, and in an update to their members on 2 April 2020, it notes that:

“...The exact consequences of the COVID-19 outbreak are unknown but inspecting property may be difficult either through their Firm's own internal procedures, Government imposed restrictions or unwillingness of occupants to grant access. Access to evidential data such as comparables, may also be less freely available”.

This does not mean that property valuations cannot be obtained. However, as carrying out valuations during the pandemic are difficult, and with the market reaction to the COVID-19 outbreak being uncertain (meaning less weight can be given to previous market evidence), the RICS advises that property valuations should be kept under review.  Each case will depend on its particular facts.[ela_accordion][tela_accordion title="What if your case involves Pension assets?"]There is much discussion on social media at the moment about whether the current economic conditions could impact how pensions are looked at and dealt with in a divorce or separation situation.Different pensions have different considerations depending on whether they are public sector, money purchase or private schemes or maybe even a combination of these. There are a lot of matters to take into consideration and, as lawyers, we need to take all of this information on board when advising our clients; rarely will two situations ever be the same. If you are worried about how to deal with pensions assets, as part of your divorce, please get in touch.[ela_accordion][tela_accordion title="So how do you decide what to do next?"]Talking to one of our specialist Family lawyers can help you decide what you want to do next, please contact them for confidential advice.[ela_accordion]

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If you would like to talk through the consequences for your business, please email us and one of our team will get in touch.