Frequently asked questions on separation and divorce during the pandemic

Insights - 18/06/2021

Pressures of the pandemic have put additional stresses and strains on families and relationships have become particularly challenged. Our family law team have seen an increase in enquiries from families during this difficult and emotional time.

Selena Ludick, a specialist in Family Law with over 20 years’ experience, shares some insights into why the pandemic is causing a surge in break-ups, and answers some of the most commonly asked questions on separation and divorce during the pandemic.

Lawyers, therapists, and academics are starting to get a clearer understanding of the factors feeding the increase in family and relationship difficulties. The pandemic has proved to be the perfect storm, with lockdown restrictions forcing couples to spend increased amounts of time together which for some has acted as a catalyst where they were already on the edge of separating.

The financial impact of Covid-19 is also likely to be playing a major role. Since the Second World War, divorce has tended to increase during economic downturns. We are now experiencing a severe economic crisis, with its inevitable de-stabilising effect on relationships.

A relationship in crisis is not always over. Sometimes, outside help from professional counsellors is all it takes to work through issues. There are many resources available to those whose relationships are going through difficult times and exploring these is the best first step for many couples. Where permanent separation is the only way, options for non-court dispute resolution are increasingly popular. These can be more conciliatory, cost-effective, and quicker ways to resolve issues. The benefits can be long term – especially helpful where children are involved.

Whether you are able to weather the storm and work together to come out stronger, or have concluded that separation is the only option, clear and kind communication with your partner will help.

Selena to comments on some frequently asked questions on separation and divorce.

What happens to child contact arrangements during lockdown?

Where parents do not live in the same household, children under 18 can be moved between their parents’ homes. Any Child Arrangements Order should be complied with, unless doing so would put your child or others at risk. Both parents can exercise their parental responsibility and agree to temporarily vary that order, but any such variation should be agreed in writing, for example in emails between you, to avoid misunderstandings.

If agreement cannot be reached specialist legal advice should be taken. If there is sufficient concern that moving your child would contravene current advice from Public Health England, varying the arrangements may be justified, but every case will look to the facts. If a court examines your actions after the event, they will likely check whether each parent acted reasonably and sensibly in the light of official advice in place at that time, together with any specific factors in the case. The court’s priority is always to promote the best interests of the child.

If your child does not get to spend time with their other parent during this difficult period, think creatively about how to maintain regular indirect contact between them – for instance by using Face-Time, WhatsApp, Houseparty, Zoom or other video apps.

You should also consider whether it would be appropriate to make up lost contact time when the lockdown restrictions are lifted. Perhaps the other parent could have additional overnight stays or holiday contact?  Any decision should be based on the child’s best interests.

Can family law matters still progress during lockdown?

Yes, they can. Family law solicitors are working as normal and are able to start and progress family law cases. The court also have an online system which is easy to use and enables parties to bring divorce proceedings themselves or via solicitors. It is always wise to consult a solicitor beforehand, to ensure you understand the legalities, timing issues, and how to complete the court papers to your best advantage.

How are the financial aspects of divorce dealt with?

The starting point in any financial negotiation is to evaluate what is in the marital pot. For that, you need to exchange full information about your respective finances and assess the asset values. This can often be one of the most difficult aspects of a divorce.

Courts will generally expect asset distribution to be based on needs, with housing needs and particularly the housing needs of the children, the key issue.

Many of the economic effects of the pandemic are still unknown, and they may be difficult to predict for some time. It would therefore be prudent, when considering relationship breakdown, to take expert advice on the relevant issues affecting their family finances and asset values, and perhaps hold off accepting a settlement until a longer-term view can be taken.

It might be possible to agree certain aspects, such as dividing the capital, but leaving income or maintenance-related aspects open – or vice versa. Speak to your lawyer about recalibrating how the assets are divided or building in a self-adjusting formula where there is a balancing lump sum payment or other suitable conditionality.

What happens if I can no longer honour my maintenance commitments?

The court will always consider a variation if parties’ financial circumstances change substantially.

The challenge is to make sure that legal costs do not outweigh the reduction you are seeking to secure. Wherever possible, talk to the other party, explain the situation, and see if you can agree a compromise, with an agreed written record of the change formalised by your solicitors. If agreement is not possible, consider mediation. If no compromise is possible, take advice. Do not simply breach the court order – you could find the bailiffs on your doorstep or be on the wrong end of other enforcement proceedings!

You will be expected to take all reasonable steps to mitigate your position, including taking advantage of the government’s Covid-19 schemes. The availability of other resources will also have a bearing.

Is there anything else I should be thinking about?

It is always important to ensure that you have a Will in place – with or without a pandemic and do remember to update any existing Will following a separation from your partner. Our Private Client team are always happy to help and are offering meetings by video conferencing.

If you have any questions regarding the above please contact Selena Ludick or a member of our family law team on 01737 854500 or email [email protected].

Disclaimer:

Although correct at the time of publication, the contents of this newsletter/blog are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position.