Family Law

The impact of Covid 19 and family law

An article by Kathryn Cassells, Associate

The impact of Covid 19 and family law

Children

Can children still spend time with both parents in separate homes?  

Yes - the Government’s guidance states: “where parents do not live in the same household, children under 18 can be moved between their parents’ homes”.

However, if anyone in either household is showing any symptoms of Covid-19, then the Government guidance on self-isolating must be followed: the person who has symptoms must stay at home for 7 days and all members of their household must stay at home for 14 days.

What if the time my child spends with one parent is supervised?

Supervised contact may be difficult at this time. Many contact centres have closed. Third parties may not be able to supervise under the current government guidance.

What if the practicalities of facilitating time with one parent are too difficult to overcome during the crises?

Think about possible ways to overcome the difficulties before refusing a child’s time with a parent. For example, if you typically collect the children from school on ‘handover’ days, you may need to move to drop offs at home for a short while. Communicate and try to reach an agreement that works in the light of the government guidance.

If it’s not possible for a child to spend direct time with one of their parents, encourage indirect time with parents/wider family through video message apps.

Do not use Covid-19 as an ‘excuse’ to breach children orders or agreements.

What if I cannot reach an agreement with the parent?

You can make an application to the court. Keep in mind that the court will be prioritising the most urgent cases.

Try to be as child focussed as possible in communications. Think about what is in your child’s best interests before making an application to the court – you can always refer the court to unreasonable behaviour during this crises if an application remains necessary at a later time.

Finances

I have a court order and can’t afford to pay maintenance. What should I do?

This is a time of great financial uncertainty.

Do not make a rash or unilateral decision to reduce the maintenance without first communicating this to your ex. If your income has reduced look at where you are saving money e.g. you may not be spending money on travel and entertainment costs will have gone down. Look at what you can realistically afford to pay.

Remember that the receiving party has needs and may also be facing financial uncertainty and a reduction in their income.

If you cannot reach an agreement on an interim basis, then you will have to make an application to vary the maintenance.

However, think about whether it’s proportionate to make an application to the court - if you can afford the legal fees for making an application can you afford the maintenance?

How final is my final order? I am worried that I cannot meet my obligations under the order.

It is possible to vary some elements of an order including maintenance and lump sums payable by instalments (note that a series of lump sum payments is not variable).

In very rare cases, the court may set aside a final order if there has been what’s known as a ‘Barder’ event. For an application to set aside a final order to succeed, the following conditions must be met:

1. There must have been a new event which has invalidated the basis or fundamental assumptions upon which the order was made;

2. The new event must have occurred within a relatively short time of the order having been made;

3. The application to set aside must be made promptly; and

4. There is no prejudice to third parties who have acquired interests in property in good faith and for consideration (payment).

The new event must also be ‘unforeseen and unforeseeable’. Ordinarily a change in market conditions would not be enough to persuade the court to set aside the order.

It remains to be seen whether Covid-19 will be considered sufficiently extreme and unforeseeable to set aside a final order. The court is likely to look at the applications on a ‘case by case’ basis.

I am in the midst of financial proceedings and am worried about the impact of Covid-19 on the value of my business, property and pension. What should I do?

The full impact of Covid-19 on the economy is unlikely to be clear for some time. If an expert has already valued your assets, you should jointly contact them for an update.

It may be difficult to obtain a new valuation at this time. For example, a property valuation may be complicated if the valuer cannot visit the property.

You should speak to your legal team about the best way to approach negotiations. It may make sense to ‘pause’ negotiations until there is greater clarity on the impact on business and investments. Another option is to consider “sharing” the risk across the different types of assets.

Domestic violence

I am experiencing domestic violence during lockdown. What can I do?

Help is still available to anyone suffering domestic abuse.

The household isolation instruction does not apply if you need to leave your home to escape domestic abuse.

If you are in immediate danger, you should call 999.

Charities such as Refuge, Women’s Aid and Men’s Advice Line have support services in place.

If you are worried for your safety, you should take legal advice. The family court is prioritising hearing ‘urgent’ cases such as applications for non-molestation orders and occupation orders.