Word is that the courts are likely to close in the next few days. Many going through the family law process are likely to wonder how this may change their position … do we arrive in the Hobbesian landscape described in Leviathan?
Briefly … no! Family law is a pragmatic regime: much more a case of “ordinary service temporarily suspended ”. In the meantime there is plenty of getting by with a bit of common sense and tolerance.
We often imagine the transition of separation as a river crossing: an interlude to a new chapter that lies on the other side of the river. There is no doubt that Coronavirus or Covid-19 represents an additional swirling current in the cold waters that lie ahead – but the basic conditions remain the same:
- You still need to reach a just conclusion to the issues you face. Where it can be done by agreement, speedily, with respect, maintaining dignity and at minimum cost then so much the better.
- For all those who separate and have children, this is not the end of the relationship but merely a reshaping of it – yes, a radical reshaping but there will still be the ongoing nexus through the children you share.
- The standards and principles that you use to resolve things now will shape how that future relationship is likely to run forward.
- It might be on a “whatever you can get away with” basis.
- Alternatively, it might be (all on a reciprocal basis, of course) with respect being given to the other person’s viewpoint, an assumption that they are doing their best and a preference for helping them to give of their best and be their best.
These positives can remain regardless of whether the Court is operational or not … the Court is almost always there as the safety net only: things are worked out because the safety net is there, not because it is used. Most cases will settle against the backdrop of impending Court proceedings, even if often this is at the settlement meeting before a judge: an FHDR or FDR.
… And this way of doing things will remain whether the Court is open today or only in some months when we have moved past these extraordinary times.
So to practicalities:
- Law generally
- Orders should be complied with until there is a new order.
- In some cases it may be safe to step outside that arrangement if the other party has agreed to a variation of the terms – but make sure that this is in writing and in clear and unambiguous wording.
- Sometimes we can see that enforcement orders would not be made (see below) – but the situation should still be managed carefully: it is probably unhelpful that you set the principle for your future dealings with each other that Court orders are there to be ignored if you can get away with it. You will need to be able to depend upon the agreements that you reach rather than having to reach for the court to enforce them each time. Your actions should be guided accordingly.
- Directions before the final order
- The situation may be changing quickly … it may be hard for an expert to give an opinion on value, for example, if the market for investments or assets is in free fall and there is little clarity as to when stability will return (or the level at which it will do so). Consequently, information gathered now may be of little use for a determination in some months’ time.
- However, the Court guidance has always been that directions should be complied to the letter and on time – and mere agreement between the parties does not halt or delay the timetabling that the Court has set down.
- The appropriate step will be to agree new timetabling and have it confirmed in an order by consent and submitted to court (even if it will take some time for the court to get around to stamping the order by way of confirmation/ acceptance of the delay).
- Preparations, advice and settlement negotiations
- With digital working, all of the above steps can advance, through E-documents, E-bundles and online meetings … some meetings, for example may be interrupted or may be harder to bring to successful conclusion but work could carry on.
- The bigger interruption is likely to be in financial cases, where the shifting financial values make the assessment of shares or the identification of assets to meet needs (and indeed the scale of the needs themselves) prohibitively hard.
- It may be that things must postpone until the virus ‘dust’ has settled and we can see the new plateau emerging through the haze.
- The Court closures that we believe are imminent will mean cancelled hearings and a backlog when things finally come back on-line.
- Fortunately, there is enormous capacity in the private sector of ‘private FDR judges’ and arbitrators. It may well make sense to consider stepping into the privatised sector rather than risk the timetabling at Court which is likely to be slow and subject to postponement … Rather like the NHS, it was already at beyond capacity owing to cut-backs and the additional challenge of arrears is bound to make for an unpredictable and unmanageable set of workloads for a period.
- Where there are child arrangement orders already in place:
- Many parents will be holding a child arrangements order in one hand and government guidance on travel and movement in the other and finding an irreconcilable set of differences between them.
- We have no doubt that some parents will be seeking to make use of the situation as a ruse to frustrate Court-ordered contact or parenting arrangements … considerable care should be taken on the “what goes around comes around” principle discussed above. The more one person tries to get away with things the harder it is for them to complain when the other does.
- Of course there will be clear situations, such as where the child is with a parent who is now self-isolating with clear and relevant symptoms and it would be folly for the child to travel given the likelihood of spreading the virus and continuing the chain of infection for more weeks as the other parent’s household picks it up. Similarly care will be required around children visiting grand-parents or other at risk groups.
- In the case of real pressing difficulties consider online mediation, ‘papers-only’ arbitration or the hybrid ‘med-2-arb’ all discussed here on our website.
- Existing financial orders: there will be others looking at perhaps a recently made final financial order and wondering how to make it work in the light of changes that may be emerging. There are perhaps three different scenarios
- Implementation issues – An order may contain a range of directions as regards implementing arrangements – these may not be possible for one or more different reasons. You may agree to do what you can … keep the other side informed and seek agreement to accept whatever can be arranged. In the event of impasse, make an application to the Court under the “liberty to apply” provision which will be in most orders and which will permit the court to give further directions as regards the working out of the order.
2. Capital and pension orders – These are by and large non variable … the order that the Court has made is fixed and, save for some lump sum by instalment orders, the Court has no power to change the substance of what it has provided. The Court does, however, have power to reopen an arrangement and a so called Barder application will be considered where there has been a fundamental and unforeseen event or change which undermines the basis of the order within a short period of the order having been made if the applicant takes action promptly. If you think that this may be relevant to you, the next step is obvious: take advice urgently.
3. Maintenance orders
These might be spousal periodical payments or child periodical payment or payment for school fees and so on.
Where the current events are going to make compliance impossible (or where needs have increased (perhaps the recipient has been working but now faces lay-off and so has a need for greater provision) then an application may be needed.
It is not fatal that an order was made relatively recently, if there has been a significant change then the court has power to vary the order, however, recent the original order.
Arrangements via the CMS may need specific advice and careful thought depending on the situation.
And whilst all of this is going on, don’t forget that we have only a short time before the end of the tax year when rule changes risk dramatic increases in CGT liabilities … take advice as to whether anticipatory transfers should be made now.
If you are concerned about the impact of the disruption to your family law proceedings caused by the current uncertainty, please contact any of our talented team of top London divorce and family lawyers at E: firstname.lastname@example.org or T: 020 7420 5000.