Covid-19 and Family Law – How have we seen the impact 12 months on…
As Family Lawyers, at Maguire Family Law we have seen first-hand the impact of the pandemic on a number of family law issues. It has impacted every part of our daily practise and we have seen how our clients have had to adapt to life of lockdown, restrictions, and the continued ride of the opening up and closing down of society and impact on their finances, arrangements for their children and family life generally.
For individuals separating, they have had to deal with the pressures of the pandemic and balance this alongside the divorce or separation process.
So how has the pandemic impacted family life for divorcing or separated families? We have seen a real impact on both financial cases, children cases and parties’ relationships generally and we have had to guide our clients through a number of challenges.
Financial issues on Divorce
How has the pandemic impacted our client’s financial cases?
1. It has created complications in establishing the asset base when trying to negotiate a financial settlement upon divorce.
Business assets may have decreased in value. This may have a real impact when dividing assets on divorce. It is therefore essential to have a recent valuation of any business by an accountant/forensic accountant. Why does this matter? Without an accurate valuation, the net asset base for negotiating a settlement might be entirely inaccurate and clients may end up with a settlement which is unfair.
Property assets may have increased in value – we are all aware that at the moment the housing market is changing. Again, obtaining an accurate valuation of any property assets is essential. Otherwise, realistically how will parties know how much equity there is to divide between them when divorcing, or how to calculate an accurate ‘buy-out’ figure if one party wants to remain in the home? In appropriate cases a chartered surveyor can prepare a valuation report. This can help provide certainty as to the correct market value either when there are court proceedings or if matters are being dealt with on a voluntary basis.
2. Some individuals have lost their jobs or received large pay cuts, which obviously will have had a catastrophic impact on their outgoings and monthly expenses. This can be very difficult for individuals separating (when there may now be two households to run instead of one) but this is particularly hard for separated parents who have children and have their expenses to meet as well. The impact of losing a job or pay cut might be as follows:
i. The amount of child maintenance they are paying to their spouse (or ex-partner) might need to reduce (if they have children);
ii. They may need an element of spousal maintenance from the other party when divorcing, either until they are back in employment, or, for a longer term.
3. When divorcing and trying to reach a financial settlement it is essential that;
i. There is full financial disclosure of all assets and income;
ii. All assets are valued accurately and by an appropriate person (including forensic accountants/ RICS surveyors as referred to above);
iii. Individuals who are divorcing must protect themselves by obtaining a legally binding consent order to regulate the terms of any agreement reached. Any settlement agreed needs to be well thought out and fair to both parties.
We explore and explain what consent orders and the need for them here.
iv. There must be a full assessment of risk – at Maguire family Law, our family lawyers can help you balance the right time to enter into a legally binding consent order and divide finances upon divorce. We will always ask the question ‘when is the right time?’ For example, it may be better to wait until business assets stabilise – this will vary case by case and you should take legal advice to explore what option is best.
4. The pandemic has brought with it some other issues: What if there is already a legally binding court order in place, but one party no longer can afford to pay what is required of them under the court order. This has resulted in a number of cases (and there is developing case law) focusing on:
i. Whether the pandemic, and subsequent loss of value of assets, can result in an order being “set aside”. This is a very difficult legal test to pass and there is case law evolving about the issue.
ii. Whether spousal maintenance orders can and should be varied if a party’s financial circumstances have changed significantly. This is much more common – there may however be timescales you need to make any application within and you need to seek advice about the risks vs the benefits.
If you are facing a similar issue, here are some useful tips.
5. Our clients are recognising that protecting their own wealth is important when separating. We always advice any clients that are separating and divorcing that they need to consider amending their Wills or get a Will put in place.
6. When marrying or having just married, we are seeing more clients seeking our advice about pre-nuptial or post-nuptial agreements and the protection that they can offer.
The pandemic has also impacted on cases involving children. Again, we have seen clients facing a whole host of legal issues. We have had clients seeking our advice as to the following:
- A parent wanting to relocate permanently abroad with their child(ren) due to the impact of the pandemic in England and Wales but the other parent does not consent. There have been recent developments within the case law about this precise issue, which you can read about here.
- Contact arrangements generally when there are local/government restrictions, with parents querying whether children can move between houses during lockdown to see the other parent including overnight stays. The simple answer to this question is ‘yes they can’. Where appropriate, a child should maintain their regular routines with both parents throughout the pandemic, as long as it is safe to do so and in line with Government Advice.
- Parent’s wishing to travel abroad for a holiday, yet the other parent will not consent over concerns of quarantining or the coronavirus generally. Please see our blog here focusing on this exact issue.
- Parents wanting to home-school their children in the longer term but the other parent does not agree.
Parents dealing with the above issues are able to make appropriate applications to court to determine disputes, whether it is in respect of arrangements for the children, or more specific issues such as education, holidays or to determine in which location a child should live.
We always support our clients and encourage them to resolve any disputes over children amicably. We make sure that our clients explore alternative ways of resolving disputes where appropriate, such as attending mediation or through solicitors’ correspondence generally. Only where that is not possible (or there is a particularly urgency/time pressure) do we advise our clients to pursue court applications, which should be a last resort. The court will then ultimately make a decision based on what is in the child’s best interests.
We are not only seeing differences in cases involving marriage and divorce, but also in respect of couples who are not married. The pandemic has meant that many couples perhaps have had a faster start to moving into together than they might otherwise have planned. Many have been faced with the ultimatum of either not being able to see their partner through the pandemic or moving in together much more quickly than they might have expected.
Couples who are living together but not married (‘cohabiting couples’) have different legal rights to individuals who are married.
So how can cohabiting couples protect themselves financially?
- We are seeing more couples entering into Cohabitation Agreements – this is an agreement to regulate what would happen to property, assets etc should the worst happen and if there was a separation in the future. This can help prevent future disputes about what do to with a property or arguments about “who owns what”.
Our post here explains what cohabitation agreements are and what they can cover.
- Couples can also enter into what is called a “declaration of trust” when jointly purchasing a property. A declaration of trust can specify how any proceeds of sale should be apportioned between a couple if it is later sold and in the event there is a separation.
For example, if one person is due to put in the whole deposit payment when purchasing a property (or a substantial amount of it) then the declaration of trust could specify that upon a later sale of the property, the deposit be returned to the individual who put it in before the rest of the proceeds are divided.
Whilst it may appear a little un-romantic, you should always protect yourself financially.
A sad statistic of the pandemic, particularly early on in the lockdown months, was that there was a significant increase in reports of domestic violence. With increased tensions within households, and limits on outdoor contact/ socialising it sadly resulted in an increase in abusive and toxic relationships – as family law practitioners we have noticed a particular increase in cases of coercion and controlling behaviour.
Where clients raise concerns to us about domestic abuse, we are always prepared to act quickly and apply for protective orders (if required) to protect their safety.
Our blog here explores the legal remedies that may be available to victims of domestic abuse.
If, however our clients are concerned about their imminent safety the police should always be the first port of call.
The government website also signposts male and female victims where they can get support and help.
There have been some general changes that we have seen in practise generally:
- Clients are focusing on other ways of resolving disputes, other than using the court process, such as mediation or arbitration. This is because the court system is suffering a significant backlog of cases at the moment as a result of having to adjust to remote, online hearings at the start of the pandemic. That resulted in cases initially being delayed to later dates. Other alternatives to court proceedings are available and we will always advise our clients to use the best legal process for their case and we explore other avenues. We have a good working relationship with mediators and can provide you with further information on this. Should you wish to book mediation now you can do so by contacting Direct Mediation Services on – 0113 468 9593 or via email – [email protected]
- The biggest change we have seen is that many court hearings are now online. The judiciary, clients and practitioners have all had to adapt to the world of online court hearings. It will certainly be interesting to see whether remote hearings will continue post pandemic. That has come with it the standard challenges of “you’re on mute” and finding a stable Wifi connection. Trying to stop clients drinking cups of tea whilst involved in a video court hearing has also proved difficult!
On balance though, online hearings have meant that justice can continue to be served and have largely proved to be a success (particularly in more straight forward or administrative type hearings).
We saw some initial challenges early on and prepared a blog listing the “do’s” and “don’ts” of remote hearings.
So how can we help?
At Maguire Family Law we always act in our client’s best interests. We have a team of solicitors with invaluable experience and have guided our clients with the issues outlined above.
Meet our solicitors here:
We pride ourselves in the following:
- We are used to dealing with high value cases and cases of a lower value;
- We will always undertake a cost vs benefit analysis with our clients and provide realistic advice about prospects of success.
- We are detailed: there is always a paper trail. We can prepare comprehensive and well thought out requests for disclosure, draft documentation to protect each client’s position. For example, we would ensure that a financial order is drafted in a way to offer the best protection for our client’s needs.
- It is also essential the client has his/her own case properly prepared. If there are court hearings, we will make sure that you know what to expect, the evidence is as persuasively prepared as it can be and that deadlines are complied with.
- We will analyse the other party’s case, so we can understand where any pitfalls might be in our own client’s cases to push for the best outcome. We don’t lose this focus.
- We also have access to the best barristers, forensic accountants etc should the complexity of the case require it.
- We are also straight shooters – we pride ourselves on clear advice and clear information as to the process.
- We are always here to help.
Our main offices are based in Knutsford and Wilmslow in Cheshire, however we have office spaces in Manchester, London and Stockton Heath so we service clients all around the UK and internationally.
If you require legal advice in respect of any family law issue generally, then please do not hesitate to contact the team on 01625 544 650 or [email protected].
This blog post was written by Frances Bentley, Associate Solicitor at Maguire Family Law.
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