Deborah Baker, Family law partner with Wollens Solicitors prepares a few short articles to look at how we deal with family issues during lockdown.
In part 2 Deborah looks at the separation process and progressing to maintenance payments.
What to think about before initiating the separation process
Our previous article dealt with the divorce process during lockdown. Today’s article follows on from that and gives you some things that you need to think about before actually starting any sort of separation process.
The Children and Families Act 2014 requires a separating couple to consider using mediation before they can ask a court to sort things out for them, so it’s best to approach things with an open attitude. Deborah Baker comments “ I always encourage couples to talk to each other, to try and reach agreement and face up to finances from the outset. This has become even more important in the current situation, if stand-offs are to be avoided. “
Here are some things to think about, depending on the stage you may be at:
Deciding whether your relationship has run its course:
If you’re going through a bad patch, you may have decided that you must try and reconcile your differences, or else wait until the lockdown ends, before trying to separate. Assuming there is no issue over personal safety, the decision is likely to be dictated by financial circumstances. Funding two homes is daunting when job security is under threat and investments have crashed, and that’s before considering how to identify and move into alternative accommodation under lockdown, even to sofa-surf with a friend.
If the result is that you are going to try and live apart while still in the same house, in anticipation of separation later, it’s worth approaching it in a structured way, and tackling the bigger issues, such as agreeing who gets which rooms or areas, how you will share the household expenses and how you will present the situation to any children living with you.
It is a good idea to put such arrangements in writing. You can do this yourselves, or with a professional adviser or mediator, and involving them at an early stage can help avoid the obvious pitfalls, while also giving you some moral support. Such guidance becomes vital where the decision is taken to start divorce proceedings, when legal and financial advice is important from the very beginning.
In terms of administration, the courts have confirmed that online applications will continue, with the divorce petition processed from application through decree nisi to decree absolute without any need for face-to-face contact.
Similarly, applications for orders relating to children can be made online, although this is currently restricted to certain postcode areas. In other areas the forms will need to be downloaded and posted to the local court.
The current financial uncertainty is making decision-making difficult, whether for those embarking on divorce or for those who have already made commitments. Any financial arrangements made in usual circumstances will have a degree of flex built in, but we are presently in extraordinary times, where both assets and job security will be uncertain.
The starting point for any settlement is to look at assets in the marriage, with shared financial information for bank accounts, investments and other assets. For those who are part of the way through the process, such figures may have been collected some time ago and already form the basis for a settlement figure. The impact of the coronavirus on all aspects of the economy, the stock market and the likely downturn in the property market, make it essential that these are reviewed in the context of any settlement negotiations.
If a court date has already been set, the hearing will be held remotely, and all first hearings in financial cases will be conducted by email. Where cases are complex, the court is expected to use video links for hearings, although in-person hearings may still be held subject to individual circumstances and the demands of the case.
It is usual in any divorce settlement to balance risk with absolute value and the professionals will work to ensure no individual ends up with all the riskier or illiquid assets, but there may be those who have already reached a settlement which no longer seems fair. It is important to get guidance as soon as possible, as speed of action is one of the factors considered by the courts, although there is no guarantee that orders may be amended, even in these exceptional circumstances. The capital elements of any settlement will be amended only where an unforeseen event invalidates the assumption on which the order was based, and following the 2008 market crash, the Court of Appeal ruled the financial disruption was not an unforeseen event.
Unlike the capital element, if you are earning less money during the crisis, or have lost your job, it may be possible to ask the court for a variation on payments under a maintenance order where there has been a material change in circumstances. Going back to court can be a costly procedure and the best starting point would be to see if you can reach agreement between the two of you, while exploring other sources of income and benefits.
It’s worth appreciating that a fall in income may not justify a change in arrangements, as maintenance is needs-based and the needs of both parties and any dependent children will be evaluated.
If you are the one receiving maintenance payments and you lose other sources of income during the current crisis, such as your job, then you can ask for a variation due to changed circumstances but the court will first expect you to take reasonable steps to secure other sources of income, such as applying for relevant Government coronavirus schemes. If it’s likely to be just a temporary situation, then have a conversation and put everything in writing.
Do take advice, whether you are paying or receiving, and avoid getting into a situation where you are in breach of a court order without having tried to resolve the problem