The COVID-19 virus is impacting us all. As we have all heard repeatedly, these are exceptional and unprecedented times. The impact in the world of family law is wide-reaching. From issues with child arrangements to the financial implications for separating couples, it is touching every aspect of our lives and day to day work.
COVID-19 is causing many to question their financial future. Many clients will find their businesses closed or be unable to work if self-isolating. This raises questions as to how they will be able to meet financial obligations, including existing maintenance orders to spouses and children during this period of uncertainty. Parties’ finances will be changing
on a day to day basis with the volatile stock market affecting pensions, investments, business interest and property values. This will of course impact on negotiating and reaching settlements.
Existing Financial Orders must be complied with until there is a new Order in place. If you find yourself unable to meet maintenance obligations, or find you need increased maintenance while you are unable to work, it may well be necessary to seek a variation of an existing order. If you receive maintenance and find your former spouse has stopped or reduced payments we may be able to help. A paying party cannot unilaterally amend the terms of a maintenance order and it is possible to enforce an existing order through the courts. If the paying party is in genuine financial difficulties an application to enforce may, however, be countered with an application to vary the order. In many cases it will be better to try and negotiate a temporary reduction in the maintenance being paid to a level that allows both parties to cope until the situation improves, possibly with provision for payment of arrears at a later date.
Many parents will find themselves at home with their children. While navigating the challenge of working from home while caring for their children, separated parents will have the further task of what to do about contact arrangements. During these times it is more important than ever that separated parents keep lines of communication open especially regarding the health of their children and anyone in the respective homes. Unless there are any medical or self-isolation issues, Cafcass are currently advising that children should maintain their usual routine of spending time with each of their parents. Michael Gove, on behalf of the Government, confirmed on the Today programme on Radio 4 on Tuesday morning 24th March that transporting children between the households of separated parents is an allowed exception to the direction to stay at home. Child Arrangements Orders must be complied with unless to do so would put your child or others at risk. If for any reason face to face contact cannot take place, do ensure very frequent contact by Skype and phone and email as appropriate for the age of the child.
The President of the Family Division has issued useful guidance on management child arrangements at this time. That guidance can be found here.
The President of the Family Division and Head of Family Justice, Sir Andrew McFarlane issued Guidance for the Family Court on 19 March. This provides for all Family Court hearings to be undertaken remotely either by email, telephone or Skype. However ‘where the requirements of fairness and justice require a court-based hearing, and it is safe to conduct one, then a court-based hearing should take place’. It is very much the exception that there shall be a need for a face to face hearing.
Bundles are now to be filed electronically and arrangements should be made for all existing listed hearings to be conducted remotely. Where a case cannot be listed for a remote hearing then that hearing should be adjourned and listed promptly for a remote directions hearing to identify the best way of conducting the court process in order to achieve a fair and just hearing of the issues but at the same time minimising as much as possible the degree of contact between each participant. There have already been complicated multi-party hearings conducted by Business of Skype.
What happens when this is all over? It is likely that COVID-19 will continue to impact families for some time after the initial crisis is over.
After a period of hearing only emergency matters, adjourning anything that can be adjourned and with reduced staff to deal with new applications, there is likely to be a significant backlog in all family courts while court staff and judges try to catch up. We are likely to see delay in the issuing of applications and divorce petitions, as well as increased waiting times for the listing of hearings in all but urgent matters.
In the event of such delays consideration can be given to moving proceedings out of the courts altogether and making greater use of Private FDRs, round table meetings and Arbitration, all of which allow the parties to control the timetable as well as the adjudicator. We can conduct private FDRs and Kathryn Peat of our team is qualified to arbitrate on finance as well as children matters, though she cannot do so for existing clients of our firm. If parties have reached an agreement about the division of their assets, but are experiencing a delay in progressing their divorce, we can assist with the preparation of a Separation Agreement to hold the position.
Asset values/recovering markets
The assets of many divorcing parties are likely to be negatively impacted by COVID-19 and it is difficult to tell how long that impact will last. Careful thought will need to be given to the assets most effected by the volatile stock market and those that are likely to recover more quickly, so that the risk can be spread across the parties.
Property values, as well as pensions, investments and business interests are likely to change very quickly and accurate and up to date disclosure will be essential. Future income, and the projected performance of family-owned businesses, will play an increasingly important role in financial settlements where current incomes and bonus projections have been supressed by the effects of the crisis. It may be necessary to obtain expert advice not only as to the current value of assets, but also the likely future value of certain investments.
Child arrangements – new status quo?
Where a Child Arrangements Order is in place, but flexibility has been necessary during the COVID-19 crisis, arrangements should revert to those contained in the order as soon as possible. If they do not the order can be enforced through the court.
The situation may be more difficult where informal arrangements are in place and have had to be altered to adapt to changing circumstances. If different arrangements have been in place for some time children may have become used to a new status quo and both children and parents may struggle to return to the old system Much may depend on for how long the schools and nurseries must remain closed, as there seems to be no current expectation that they will reopen at the end of what would have been the Easter holidays. Mediation can be extremely helpful in matters relating to children and ultimately, the courts (or an arbitrator) can be asked to step in.
It may be that family solicitors see an increase in enquiries in the immediate aftermath of the COVID-19 crisis. Those that held off bringing proceedings, or who put existing proceedings on hold, may feel ready to take the next step. Whatever the impact on your family, the Family Team at Sinclair Gibson can help, both now during the crisis and when the country returns to what we used to call “normal”.