In this blog Family Law in Partnership Director James Pirrie examines whether the Coronavirus pandemic provides the chance to escape from deals or orders on divorce or separation which have just been agreed.
Of course you would like a simple ‘yes’ or ‘no’ … but if you have completed your case and been through the long family law “mill” that brought you here, you will surely not be expecting anything so refreshing. As usual the answer is somewhere between “possibly”, falling way short of “probably” and as with most other questions that you have raised over the past months on this family law journey the answer is dependent on the application of principles that never operate with the precision that permit prediction.On Thursday 9th April 2020, five hundred lawyers tuned in to listen to Barrister Alex Chandler share his expert views and extensive research on this topic.
You will need to take advice and you will need to do it quickly if you want to make a claim to escape (“set aside”) the order. If you are on the other side, fearing the application then there is probably nothing to do but sit tight and not blink (or take advice if you would like the reassurance to be able to sleep better).
If you have not got as far as an order and don’t want it, then rush to your lawyer; take advice and for goodness sake apply the brakes in whatever way you can to stop the order from being made.
And if any of this sounds like advice – it isn’t! This is a blog.
1) the unknown unknown
But to give the overview in slightly crude summary: you are looking for an “unknown unknown”.
- Anything less will not do
- And even then there are more obstacles to hurdle.
| Massive market shift? | This is not an unknown unknown … markets DO adjust and correct – they did back in 2008 and the market falls then were not sufficient to permit set aside under Barder. |
| But CoViD19? | Ah – well this may be something of a different scale or order entirely. So it may well qualify.
A market shift may be ‘worth unknown, although his height be taken’ but CoViD19 was the bolt from the blue [unless you have been reading zoonosis books, all of which thought it just a matter of time, but that point is unlikely to be taken]. And whilst it is early days, there are clearly some industries (and thus investments / careers) that are completely upended. |
| Even post February cases? | By the time we got to February, surely we knew that this was seismic – its worth might have been unknown but its existence was very much known.
It is as if there is a principle “did you have a chance to deal with this in the litigation?” And here the answer will be given ‘yes’ … “you could have adjourned … you could have appealed the judge who refused to let you adjourn … you could have done a different sort of deal, dividing each class of assets in two…” etc etc. |
2) invalidation
It is not just that you need seismic change … it must also invalidate the order. If each of you have lost out, there may be no reason to intervene – the impacts have to undermine the basis or approach.
3) third parties
If the order has already started to be implemented, such that third party rights have arisen (eg through the sale or disposal of a property that now needs to be dealt with differently or perhaps through a pension share having been implemented) that may be fatal.
4) move quickly
The courts prefer their justice final … simply delaying taking action will be a good enough reason for the court to refuse you relief.
5) is it fair?
Quite a few applicants under Barder have been unseated by the court saying “hang on … you are a businessman; you deal in risk: you were quite happy to do this deal because of the upsides it seemed to offer you – so it is not for you now to come back and cry that things have not worked out and you need release. We are just not going to do it.”
6) Any alternative will do
You may take a tumble at fence six because of the court’s instinct to leave its capital and pension orders inviolate once made. So it may prefer to adopt rougher justice of:
- Varying a maintenance order; or
- Adjusting a lump sum order being paid by instalments (if there is one);
even if these routes are ungainly at best and don’t really sort things out in a satisfactory way.
7) floodgates
Even if you get this far, you may find that the court, shifts/ upgrades/ tightens the criteria … so that your CoViD case whilst you ought to qualify on current principles may yet fail as you bring your case to court.
This could be because the family court was terrified of unleashing on itself in the post-pandemic-period (just at the time of trying to address the vast lock-down back-lock) a whole raft of case-re-hearings, which it simply did not have capacity to manage. Of course this would not appear in the reasoning because administrative capacity couldn’t/ shouldn’t be part of the conversation. But we all know these things happen …
… As we say falling short of “probably” and to be fair, in most cases “chances not much above “possible” but there may be quite a few situations which are at least “requiring investigation”.
James Pirrie is a director at Family Law in Partnership. James specialises in complex financial issues and non-adversarial and cost-effective approaches to divorce and separation including mediation, arbitration and collaborative law. He helps clients take control of the issues that affect them, clarifying priorities, exploring all the options and identifying the best way forward. Contact James at E: jp@flip.co.uk or T: 020 7420 5000.