19 May 2020

The unique challenges facing family law during lockdown

Portrait of Suzanne Kingston

Suzanne Kingston: 'Personally, with the huge technological change I feel the world of work will never be the same again'

Suzanne Kingston provides answers to a series of pressing legal questions faced by families during the Covid-19 pandemic

It is just under two months since the lockdown was imposed in the UK. During this short period, we have seen seismic change — some of which will probably last for ever. Personally, with the huge technological change I feel the world of work will never be the same again.

But what of family law?

Couples who were on the brink of separating are now stuck together. Couples who had separated and need to implement their financial settlement are faced with entirely different financial matrices. Children who spend time with each parent need to move between two homes, but how does that work? Those marrying have probably postponed their weddings — where does that leave the prenup? Newly together partners had to decide overnight whether they were isolating on their own or together.

So how do we answer all these questions?

Children

The Government and the President of the Family Division have issued guidance about children moving during the pandemic pursuant to a court rrder. The guidance makes it clear that the stay at home rules do not apply where parents don’t live in the same household — children under 18 can be moved between their parents homes but this does not mean that children must be moved.

The decision whether a child is to move between parental homes is for the parents to make after a sensible assessment of the circumstances, including the child’s present health, the risk of infection and the presence of any recognised vulnerable individuals in one household or the other.

The Guidance makes it clear though that where the arrangements cannot be upheld the spirit of the order should be. The President urged parents to maintain continuity of communication via email/telephone calls or video apps like Skype or Zoom 

Court hearings

The courts are closed apart from urgent work. Other less urgent work is being dealt with via Skype but of course there are numerous out of court options. Probably the most important in family law at the moment is family law arbitration- the Institute of Family Arbitrators was established in 2012 and now over 250 family law arbitrators offer arbitration in both financial and children cases. Mediation is another popular forum and both mediation and arbitration can be conducted on virtual platforms.

Financial settlements

There has been much debate over the last few weeks about whether the current pandemic will be deemed to be a Barder event. If that was the case then it may be possible to reopen a settlement which should been entered into within the last six months to a year.

However, caution should be exercised here – in the case of Myerson, the Court of Appeal found against her husband who wanted to revisit an order that he said was unaffordable following the 2008 financial crisis.

Negotiating a potential financial settlement at this time may be tricky – there has been huge volatility and fluctuations in the share market and property valuations are in a state of flux. It may be possible to negotiate a settlement using percentage sharing of assets or possibly sharing the risk across each of the different classes of assets using the Wells sharing principle.

Alternatively, balancing lump sums can be based on asset values at the date of implementation and maintenance can be agreed on a self-varying percentage basis. So lots to think about in terms of valuations and agreements.

Maintenance 

It may be that current maintenance orders are unaffordable due to changed circumstances arising out of the pandemic.

Careful consideration needs to be given as to whether an application to vary a court order should be made now or whether it’s preferable to consider eligibility to one of the government schemes currently available or seek the agreement of an ex-spouse to voluntarily and temporarily reduce the maintenance payments.

Weddings

As we approach peak wedding season, many couples are facing the prospect of cancelling or postponing their wedding for several months. A prenup only works for 12 months up to the date of a wedding and so may need to be revisited. Also, during this time it may be necessary to have a cohabitation or parenting agreement.

These are just some of the topics that are high on the list for family lawyers in England and Wales at the moment but as the situation evolves I feel sure that many more will arise.

Suzanne Kingston is a consultant at Mills & Reeve. This article is part of the Family Law During Lockdown series, which she commissioned from family lawyers from around the globe. Click here for more commentary on how courts are adapting to the impact of the pandemic.

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