Divorcing couples could face delays, battles over maintenance payments and separation from their children as coronavirus has thrown traditional court processes out of the window.
The pandemic has led to job losses, financial difficulties and childcare problems while schools are closed. Trudi Featherstone, a partner at law firm Goodman Ray, warned that these factors could force some families to reconsider settlements and even whether to get divorced at all.
“The period of isolation will be difficult for all families, but for those going through a divorce it could be particularly painful,” she said.
Delays in the courts
Couples who are already going through the process may experience delays. Court staff have had to move to working from home and, although some hearings are being done remotely via video link, only urgent cases – for example involving domestic abuse or child protection – are being prioritised.
“That means other divorce hearings are likely to be adjourned until things calm down,” Ms Featherstone said.
Miranda Fisher, a family lawyer at the firm Charles Russell Speechlys, said it could be harder for judges to assess a person’s character via a video call and warned that some people may end up feeling they have been treated unfairly.
Divorce cases only go to a court hearing if disputes over financial settlements or children cannot be resolved by the couple or their lawyers.
The Ministry of Justice said most divorce cases do not require a hearing and that it is not currently noticing a slowdown in the time taken to process paperwork for online divorce applications.
Settlements thrown out of kilter
The pandemic has also thrown stock markets and businesses into chaos. Circumstances are changing all the time, which could create a situation where a financial settlement suddenly becomes very unfavourable for one party, warned Ms Fisher.
If, for example, a couple has decided to split their assets equally, with one partner keeping the house and the other the shares and pension, a significant fall in stock markets could severely disadvantage one party.
“You can apply to have a decision reviewed if you believe a sudden and unforeseen event has made it unfair, however normally a market downturn would not qualify,” Ms Fisher said. She added that it was unclear whether coronavirus would be accepted as grounds for reviewing a financial settlement but that it would likely depend on how much the value of the shares had fallen by.
The housing market too is going through difficulties and sellers may be hard-pushed to find a buyer at this time. That could throw settlements into jeopardy if couples are unable to sell their family home – potentially increasing their capital gains tax liabilities when they do finally reach a deal.
Keeping up with maintenance payments
Changing circumstances, such as being made redundant, can also affect whether or not a former spouse is able to keep up with their maintenance obligations. Ms Featherstone said she has been receiving many calls from clients concerned about what will happen if they can no longer afford the payments.
“Once you have a court order you have to obey it – but you can try to come to an agreement with your former spouse to temporarily change the agreement,” she said. For example, someone paying their former partner’s mortgage could ask them to make use of the three-month repayment holiday available to homeowners.
Access to children
Divorced parents who split childcare duties should both continue being able to see their children, despite government advice that different households should not mix. A special clarification was made that children under the age of 18 could still move between households if their parents are separated.
“However the Government’s advice is that if someone in one of those houses is showing symptoms of coronavirus the child should stay put,” Ms Featherstone said. Some parents, she added, have been exploiting this as a way to stop a former spouse from seeing their child.
Escaping a coercive partner
Those who have not yet separated from their partner will still be considered as part of the same household and have to isolate together for the foreseeable future. Karen Holden of A City Law Firm, the solicitors, said this was a huge concern for anyone stuck living with a coercive partner.
“I recently took on a new client who is afraid of her ex but was ready for me to write to him to say she wants to divorce. She has now decided to pause proceedings because of the prospect of remaining together in lockdown,” Ms Holden said.
Quick fix pitfalls
Couples could try to get around the court backlogs by reaching an agreement themselves and applying for a divorce online. This service has been available since 2018.
William Longrigg, also of Charles Russell Speechlys, warned that this could leave one party with an unfair settlement. “Two alternatives which would still allow you to avoid the courts would be to use a mediator or an arbitrator,” he said.
A mediator is a third party that helps couples reach a fair agreement between them while an arbitrator is a private judge that can make a binding decision on what is a fair split.
Are you facing problems with a divorce, financial settlement or negotiating maintenance/care of children? Get in touch by emailing [email protected]