COVID-19 Outbreak and Divorce: What happens now?
Tuesday, April 14, 2020
Tuesday, April 14, 2020
The COVID19 pandemic and the subsequent lockdown has, in some cases, had a detrimental effect on many relationships as couples are forced to spend time together 24/7. For a number of couples, the pressure of living together under these circumstances has brought a number of issues between them to the fore.
For those going through a divorce, or considering a divorce, Jenny Goldstein and Sarah Ward of Samuel Phillips Law, answer your questions as to how the COVID19 outbreak is affecting proceedings and should you be going through a relationship breakdown, what your options are during this time.
Can I commence divorce proceedings during lockdown?
Simply put, yes. Divorce proceedings can be commenced without even leaving your home. The Courts are still processing Petitions. We do however recommend you seek legal advice before filing your Petition. We can offer advice as to the best way to proceed.
Can I leave my husband/wife during lockdown?
Yes, although the practicalities of an actual separation during lockdown are more difficult, it is still possible. The current government guidance is for non-essential moves to be postponed. If, however there is a high level of conflict, particularly where children are present; or if you are in an abusive relationship, it is imperative that you prioritise the welfare of your children and your own safety and health. It may, however, be preferable for your spouse to move out, so please seek legal advice first. This can be obtained discreetly online or by emailing one of our family lawyers directly.
Will COVID19 affect the progress of my divorce?
The divorce petition is dealt with separately to the financial settlement. The divorce itself is generally a paper exercise and there is usually no need to attend court. Notwithstanding some delays due to staff shortages, your divorce should proceed as normal.
Should I delay agreeing a financial settlement until the COVID19 crisis is over?
Each case is fact-specific. For some, it is better to wait, given the current financial uncertainty and significant decrease in the value of portfolios and pension funds. For others, they may wish to push through a financial settlement whilst assets are lower in value. We can advise you as to your best options.
I have recently finalised my divorce, can it now be changed?
We do not yet know whether COVID19 19 will be a ground for reopening a financial settlement. This will depend on whether the pandemic is seen as a “Barder event” such that it was unforeseeable and unforeseen. The financial crash in 2009 was not a Barder event. At the time of writing, there are no reported cases stating whether COVID19 is a Barder event. If you want to revisit your financial settlement, we recommend you take legal advice without delay.
I am paying maintenance to my ex-partner, I have lost my job and I cannot afford to pay. Will I be in breach of the Court Order if I stop paying?
If your income has drastically decreased, and there is no government help available to bridge the gap, firstly approach your ex partner and ask whether they will agree to a temporary reduction in maintenance. If they will not agree, then you will need to make an application to court for the Order to be varied.
My child’s other parent claims they can no longer afford to pay me any child maintenance. Can they just stop paying?
If you have an informal agreement in place and the other parent says they cannot afford to make the maintenance payments, it will be hard to enforce. We recommend you seek immediate legal advice.
If the child maintenance has been calculated by the CMS, and the income of the other parent has reduced by 25%, the CMS will adjust their calculation downwards. The paying party MUST, however, report any change in income before reducing payments.
If there is a Court Order in place, the paying parent will be in breach of the Order if they do not continue to pay. If they maintain they cannot afford to pay but you believe they can then enforcement action may be taken. Take legal advice before making an enforcement application.
I have a court hearing coming up, will it still go ahead?
The Courts are now generally closed to the public. Instead, hearings are being held remotely by telephone and Skype. Your solicitor will keep you informed. Unless you hear otherwise assume your hearing will be going ahead remotely. The Courts are also encouraging the use of alternative means of “virtual” resolution, such as arbitration and private hearings. Over the next few months, it is anticipated that many hearings will be dealt with in this way.
There is a Court Order which stipulates that the children spend time with their other parent each weekend. Do they still have to go?
The “stay at home” rules do not apply where parents do not live in the same household. Children under 18 can be moved between their parents’ homes. But this does not mean that children must be moved.
Discuss this with your ex-partner. Be sensible, assess the risk, consider your children’s health and other family members and the presence of any vulnerable persons in either household. If you and their other parent agree you, can vary the terms of the Order. Do record this in writing.
If you cannot agree to vary the terms of the Order and you believe that complying with the Order would be against current Coronavirus health advice, then you can vary the Order without the other parent’s consent. Take legal advice before doing so. If the usual arrangements are varied and the other parent misses out on spending time with the children, the courts WILL expect this time to be made up.
How can Samuel Phillips Law help you?
During this time our Family team is working remotely and is fully operational. We can provide you with legal advice on any aspect of family law and can continue to progress your matter.
We are able to offer alternatives to face to face meeting and can offer appointments via telephone, email, video calls and conference calls.