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If you are considering or going through a divorce, we outline some of the issues couples will be faced with over the next few months and possibly longer, and what you should do to navigate those issues.
Whilst significant attention has been spent upon how to deal with self-isolation and social distancing, for those individuals who are in a marriage or relationship they don’t want to be in this can be a very difficult time. However be assured that as family lawyers we can continue to advise and assist in enabling individuals to begin to manage the process of separation. We can provide information and support to enable you to think about options and likely scenarios.
Most lawyers are able to continue working although may conduct meetings through Skype or Zoom etc rather than the traditional face to face method. For some this may offer more comfort than having the anxiety of having to perhaps travel to a solicitor’s office. For others it may be difficult to facilitate perhaps due to the lockdown and having a child or your spouse present in the home.
Do therefore contact your lawyer and see what method of contact can work for you as there is usually flexibility in approach.
As ever it can be the practicalities of an actual separation that are most difficult. For those with resources or the ability to physically separate this can be achieved as long as both parties understand that the asset pot and income available may reduce slightly by having two sets of accommodation to run, but for individuals this may be the best thing to do for their own health and so worth doing. An individual’s interest in the family asset does not reduce as a result of taking the above steps.
This could be difficult during the current lockdown period but not impossible. The government guidance is of course changing daily but at the time of writing they are encouraging all bar non- essential moves to be postponed, including those renting; suggesting that if a move cannot be delayed and it is for example into an empty property then you must adhere to the social distancing requirements - not easy if you need outside help to physically move items.
This can clearly be beneficial where children are involved as it prevents them for witnessing conflict within the home. It is also important to prioritise your safety not just your health, and for those in abusive relationships who are unable to temporarily locate to family or friends it may be necessary to seek further legal advice.
Where a move is simply not possible and it is safe for you to remain then allowing each other some space within the home is imperative but bear in mind the benefits of you demonstrating to your children a level of good communication and co-operative co-parenting which will be of huge benefit to them as they grow up.
Whilst court processes and the traditional negotiation through solicitors continue there may be some slight delays with regard to valuation evidence as a result of experts being unavailable or court hearings being adjourned. The court is prioritising certain cases for example where there is an urgent element and safety or welfare of individuals at risk.
However in the majority of cases the wheels will keep turning and lawyers will try and find an amicable and fair solution between individuals.
Whilst each case is fact specific, there will be different levels of need. Some individuals may wish to pause the process given the current financial uncertainty and the significant reduction in asset portfolios and pension values. Others may wish to take into account the same position in trying to force through a settlement whilst the assets may be lower in value.
However for many there is likely to be a slowing of the process as properties are unlikely to sell and individuals pause to consider the effects of COVID-19 upon their business or employment and savings.
For those going through the process now, family lawyers can continue to advise you upon your best options. The Court is encouraging the use of alternative means of dispute resolution such as arbitration or “Private Financial Dispute Resolution Hearings” where in both instances you pay for an individual to adjudicate on your matter in place of a judge. It is not always the case that the “decision” handed down will be binding depending on which route you take but it is a means of determining what a judge may order and therefore helpful in encouraging parties to settle.
Many individuals will have spousal maintenance Orders or, could be paying or receiving child maintenance payments and given the uncertainty of the future, will be worried about the impact of their financial positions, whether they are the payer or a recipient. Whilst the court has the power to vary a maintenance Order on the basis of a significant change in circumstance, unless there has been a redundancy or closure of a company it is possibly too early to know for sure what the impact is at present.
For the payers this should not be considered an immediate opportunity to return to court seeking a downward variation, the nation has in the vast majority of cases not as yet gone through the full effect of the epidemic and so the impact upon incomes for the majority is not yet known, the Government in many cases is offering support which could bridge the gap. Courts could become flooded with applications if there are significant long term implications which will not help the system.
In the first instance, if you are struggling financially to meet court ordered commitments following a reduction in your income we would advise writing or speaking with your former partner and letting them know the position as early as possible. They will be worried and communication, even if it is bad news, at least closes down the “what if” worry that many will be going through.
If a compromise cannot be reached between you then individual payers may need to write to the recipients, detailing, with evidence if possible, the current impact of coronavirus upon their incomes and must request a suspension or reduction of the terms of the Order or the assessment. The more evidence that is produced the more likely an agreement will be reached with the recipient.
Ultimately, where a sensible compromise cannot be reached applications to Court in due course may be necessary to reduce or stop maintenance payments. If there are arrears owing under the terms of any Court Order and you can demonstrate to the Court that you simply could not fulfil your obligations to pay maintenance, you could ask the Court to remit arrears ie forego you having to pay. However the Court will need to take a fair approach and cannot be guaranteed to agree to any request made.
The Child Maintenance Service, where involved already, is able to recalculate maintenance obligations where there has been a change in income of 25% or more, although understandably is experiencing a high volume of enquiries at the present time so anticipate there may be delays in them assisting. For those seeking to bring a claim for child maintenance through the CMS please be aware that their usual indications of processing your application within the month may be delayed also.
It is recognised that for the recipients for whom many rely upon the payment as their main source of incomes we would advise that you consider the position carefully where a former partner has sought to reduce payments. Sadly recipients will need to consider any impact of loss of payments and if necessary seek additional support from the DWP. There are many online benefits calculators that would enable individuals to see whether or not they would benefit from DWP help.
The recipient should also talk to mortgage companies to arrange mortgage holidays and credit cards and banks about reducing fees until such time as it is anticipated that the pandemic will come to an end.
For those with school fees Orders we would recommend that individuals speak to schools about any difficulties that they may be facing and it is hoped that schools will recognise the position of individuals and come to a sensible arrangement.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at March 2020. Specific advice should be sought for specific cases. For more information see our terms & conditions.
30 March 2020