Family law and COVID-19

The coronavirus pandemic sweeping the world at the moment has inevitably had implications for people going through family disputes and solicitors practising family law. The need to protect public health and to ensure that solicitors continue to act in the best interests of their clients has meant that, while business continues as usual and justice continues to need to be done, we are having to take into account these unprecedented times and adjust the way in which we work.

Financial disputes between divorcing and separating couples

The main concern that family lawyers have when dealing with the financial aspect of the divorce at the moment is to consider whether or not it is safe to negotiate an agreement or to ask the court to decide how assets should be divided between the parties.

There is considerable concern that the property market may be slumping. Houses are frequently by far the biggest asset in this type of case and it is dangerous to negotiate an agreement if you do not know what the value of the asset is. I have had to advise a number of clients that it would be prudent to delay negotiations until the economic chaos being wrought by the pandemic has passed and the property market has stabilised. Clients who need to move house face the added challenge of whether they can get a mortgage.

Similarly, the values of investments and pension assets may be being adversely affected. Many pension funds invest heavily in the stock markets and when the markets are volatile, it is difficult to be confident that the value of the pension will not have dropped. It does depend on what sort of pension we are dealing with and whether the pension is going to be shared or if it is going to be offset so that the other party receives more of the non-pension assets in return for there being no pension sharing. The markets have recovered somewhat in the past few weeks after the horrendous crashes seen at the start of the lockdown, but it probably takes an investor with nerves of steel to buy shares at the moment.

There has also been considerable debate among lawyers about whether or not the pandemic amounts to a Barder event; in other words, something that renders agreements or orders no longer appropriate because events having undermined the whole basis on which the order was made. The answer is unclear at the moment. I have seen it argued by a senior barrister that while the pandemic is unprecedented in recent history, recessions or market slumps are not particularly unusual; the financial crisis of 2008 and subsequent recession did not lead to orders being overturned. I suspect that, as is often the case with family law, the answer is that “it depends”. No two cases are the same and it will depend on the circumstances of each case.

Disputes about children

There was considerable confusion when the lockdown was first imposed about whether or not parents were still supposed to comply with Child Arrangements Orders that children spend time with both parents. Initially the government position appeared to be that children should not travel between parents homes, but after a somewhat confusing statement by Michael Gove on television, it was very swiftly clarified by the government that children were permitted to move from one home to another.

There has been also great deal of concern about whether or not unscrupulous parents will take advantage of the lockdown to fail to comply with orders or to fail to return children after contact visits.

Very early on in the pandemic, the President of the Family Division (the senior family judge in England and Wales, Sir Andrew McFarlane) issued guidance making clear that the government’s Stay At Home Rules say that “Where parents do not live in the same household, children under 18 can be moved between their parents’ homes.” However, does not mean that children must be moved between their homes. Sir Andrew stated that the decision as to whether a child should move between parental homes is for the child’s parents to make after a sensible assessment of the circumstances, including the child’s health, the risk of infection and the presence of any vulnerable individuals in one household or another. Again, the answer is probably that “it depends”.

However the President was also very clear that if a child does not get to spend time with the other parent as set out in a court order, the court will expect alternative arrangements to be made to establish and maintain regular contact between the child and parent, for example by FaceTime, Skype, Zoom etc. He made quite clear that where coronavirus restrictions cause the letter of a court order to be varied, the spirit of the order must be complied with

Solicitors firms

Most solicitors have relocated their offices to their home addresses.

On the afternoon of 23 March 2020, a few hours before the Prime Minister announced the lockdown, I visited a local law firm to deliver some urgent papers. As I arrived at the front door, I was greeted by the sight of what I can only describe as being an evacuation. I was not particularly surprised as by this point we were all expecting the lockdown to be imposed imminently, but it was still shocking to see lawyers carrying their computers out to their cars in the car park.

Later that evening, as soon as the Prime Minister finished his announcement, I immediately drove to my office to collect what I needed. To be frank, I honestly wondered if I would be pulled over by the police and sent home or if I might encounter a roadblock. However, I got to the office without difficulty and implemented my disaster plan (all law firms are required to have a disaster plan, although my plan anticipated problems such as fire or flood; I confess that I had not anticipated a plague). I loaded as much of my office into the back of my car as I could manage and returned home.

Business continues more or less as usual, although there are some changes. I started to become as paperless as possible about a year ago and that has paid dividends. I am able to work efficiently at my home address. All of my case files are stored in the cloud in a specialist legal document and management and accounts system so I have access to everything and I have the minimum of paper in my office. Consultations with clients are conducted by telephone, Skype or Zoom etc. Adobe Acrobat is being used to enable clients to sign documentation electronically. Wherever possible, I am encouraging clients to not send physical letters to me although I am still able to visit the office briefly twice a week to collect my post.

The pandemic has coincided with the introduction of an online portal for solicitors to issue divorce proceedings and other court applications, although it has to be said that it is not without glitches. Court hearings are taking place by telephone conferencing or Skype (I cannot say that I am a big fan of Skype and I much prefer Zoom, but HM Courts and Tribunals Service have not yet approved use of it.)

I suspect that some of these changes will become the norm and will continue to be used when the current crisis has passed. For example, we are encouraged by the court to now reach agreement about what directions we will seek from the court at First Appointments in financial application cases, so that an agreed order can be submitted to the court and a hearing avoided. That is entirely sensible as in the vast majority of cases, it is very easy to agree those directions, but the court has always expected us to come to court for it. I suspect that in the future, we will continue to undertake some court hearings by video link, particularly early hearings where there is no need for the parties to give evidence, but conducting a trial using a video link is probably challenging.

For the time being, it’s business as usual (more or less).

3 May 2020

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