What questions are being asked of divorce lawyers during the coronavirus lockdown?
The hot questions
Sudden job loss or change of circumstances for existing agreements and orders
I am paying maintenance to my wife but I have lost my job due to the pandemic. Can I stop paying?
First of all it’s important to make sure that you put yourself in the best position possible by checking out all Government schemes that are available to you. If you feel after pursuing those avenues that your income position has changed dramatically you can’t and make ends meet, then firstly ask your ex-spouse if she will agree to a temporary reduction in maintenance. If she won’t then you could apply to the court but there are problems with court sittings at the moment. I will talk about that further in the article.
I have already reached a deal but now don’t think it is right in the circumstances: can I set aside the order?
It is very difficult to set aside a court order and the question will be whether or not the pandemic is judged as a Barder event, which means something causing significant changes. This needs very careful consideration because the pandemic would need to be viewed as unforeseen and unforeseeable if agreements are going to be re-opened. The Court of Appeal in Myerson found against a husband who wanted to revisit an Order that he said was unaffordable following the 2008 financial crisis.
Marriage delays and prenups
I was due to get married but we are all in isolation so it has been postponed. Will this affect my pre-nup?
Pre-nuptial agreements should be negotiated and finalised in good time before a wedding so at least 28 days before or generally within 12 months of the wedding date. If your wedding has been pushed back to next year your agreement may be out of date and will need to be revisited. If you are going to live together or have children before the postponed wedding it may also be a good time to consider a cohabitation or parenting agreement to think about the big issues you may face in future whilst things are calm and happy.
Divorce
Will Covid-19 affect the progress of my divorce?
The main divorce suit is dealt with separately to the finances or separation of assets. The divorce itself is generally a paper exercise and there is usually no need to attend court. While staff shortages may mean slower turn-around times there is no reason to suspect that your divorce will not otherwise go ahead as anticipated.
Financial negotiations
I am going through a divorce, should I crack on and deal with the finances?
It depends. Consider whether now is the best time to settle: there is huge volatility in the market and it is difficult to put valuations on assets. Consider how you might structure your settlement: would it be sensible to think about percentage sharing rather than providing a fixed lump sum? Think about sharing each type of asset class so that each of you are bearing the risk. Also it is possible to put in clauses about floors and caps regarding assets shares. Or even a reverse lump sum. Even when an agreement is reached market volatility can mean longer implementation times, especially when a deal relies on the sale of property. Think about agreeing interim arrangement so needs are met but the parties are not left in limbo indefinitely. There is a great deal to think about here and talking to a lawyer is a good idea.
Childrens visiting arrangements during the pandemic
I have a court order which stipulates that my ex-husband must have contact with my three children this weekend. In the light of this pandemic do they have to go?
The President of the Family Division has issued guidance to parents making 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 parent’s homes but this does not mean that children must be moved between homes. The decision whether a child is to move between parental homes is for the childs 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 President’s guidance makes clear though that where the letter of arrangements cannot be upheld the spirit should be. Think about how to maintain continuity whilst in self-isolation. This could be through email, telephone calls or video apps like Skype or Zoom.
Will court hearings be cancelled?
I have an imminent court hearing, is it likely to go ahead?
The courts are closed apart from urgent work but they are dealing with hearings via Skype. It is important for you to contact your solicitor to see whether you’re hearing will proceed and in what format. There are numerous other ways of dealing with cases apart from court hearings to include mediation and Arbitration and these can be dealt with virtually via Skype or zoom. Over the next few months it is likely that many hearings will be dealt with in this way.