Frequently asked questions during COVID-1918/05/2020
Everyone’s lives have been turned upside down of late. The way in which we live and work has changed, and there is uncertainty about when, how and if it might go back to ‘normal’. Mincoffs family team remain here for our clients through these unprecedented times whether you have an ongoing case with us or are looking for advice.
Here we answer some frequently asked questions.
Can I divorce during lockdown?
Yes, the Court are still accepting new applications and they are still processing applications for decree nisi and decree absolute in respect of petitions issued before lockdown. Parties do have to bear in mind however that we are experiencing longer delays than usual in the processing of the same.
Can I still resolve financial arrangements with my ex-partner?
Yes, there are plenty of options available to negotiate a financial settlement during lock down. Out of court methods often referred to as alternative dispute resolution have many advantages giving the parties more control, reducing stress, maintaining good relations and reducing costs. The Courts are still receiving and processing agreements reached by Consent. Court proceedings remain an option in the absence of an agreement being possible but remain the last resort and indeed parties are being actively encouraged by the Courts to resolve matters using alternative dispute resolution to avoid lengthy delays. Parties already in Court proceedings can opt to agree to a private FDR or arbitration to achieve a more timely resolution if that is what both parties want. It may be that in some cases it is not appropriate to settle matters on a final basis when the value of some assets are fluctuating significantly but we will be able to advise based on individual circumstances.
Do I have to continue paying child maintenance?
Child maintenance is often agreed between ex-partners. If you fall into the category of having such an arrangement if your financial circumstances have changed, the first step would be to talk to your ex-partner and explain your change of circumstances and what if anything as a result you can currently afford. If you can’t agree an amended figure, either party can apply to the child maintenance service for an assessment and they will determine how much should be paid. It may also be appropriate to vary the figure if the arrangements for the children have changed and you are having them in your care more than usual.
If you are paying child maintenance via the child maintenance service and your income has changed, you should contact them as soon as possible to inform them and ask that they reassess your liability to pay.
If you are paying child maintenance under the terms of a court agreement you should take legal advice. If 12 months has passed since the making of the consent order and you cannot agree a variation to the amount with your ex-spouse your recourse is likely to be to the child maintenance service to conduct an assessment. If 12 months has not passed if you can agree a variation this should be recorded in writing between yourself and your ex-spouse. If you cannot agree a variation you may need to apply to the family court or your ex-spouse could take enforcement action.
Do my children still have to spend time with their other parent?
The guidance published by the Government is clear that where parents do not live in the same household, children under 18 can be moved between their parents’ homes. Therefore usual arrangements should continue.
For parents who have genuine concerns that maintaining their children’s usual routine of spending time with the other parent is currently not safe, particularly those with Court Orders in place, the President of the Family Division The Rt. Hon. Sir Andrew McFarlane issued guidance to confirm that this does not mean that children must move between homes. This is a matter for parental judgement “after a sensible assessment of the circumstances, including the child’s present health, the risk of infection and the presence of any recognised vulnerable individuals in one household or the other.”
If, as parents you discuss your concerns and come to an alternative temporary arrangement in the best interests of the children and other family members, it is open to you both to agree to effectively vary the Order. It would be sensible in such circumstances, the guidance suggests “to record such an agreement in a note, email or text message sent to each other”.
In the event one parent has genuine concerns that the usual child arrangements cannot to complied with because to do so would be against current advice from the government and health authorities they may choose to exercise their parental responsibility to change the arrangements under the Order to arrangements that are safe. If the other parent questions the same before the Court at a later date the guidance suggests that “the Court is likely to look to see whether each parent acted reasonably and sensibly in the light of the official advice and the Stay at Home Rules in place at that time, together with any specific evidence relating to the child or family”.
If the usual arrangements cannot safely take place it will be important that suitable alternative arrangements are established such as regular remote contact utilising Skype, Face-Time or suitable alternatives until face to face arrangements can safely resume.
We are facing an unprecedented situation and parents are being urged to communicate with one another and to act in a way that puts the health and safety of the children and all other family members at the forefront.
If you have a court order and cannot agree an appropriate variation between you as parents it may be possible to apply to the Court. Similarly if you have no court order and have been unable to see your children during this period and do not accept that the other parents has genuine reasons for withholding contact again you may be able to seek the assistance of the Court.
Will my Court Hearing still happen or Can I get a Court Hearing if needed?
The Courts are still operating. To ensure the safety of Court staff, the legal profession and all parties to court proceedings hearings can and still are going ahead but they will take place remotely by telephone or video conferencing. If you require the urgent protection of an injunction order whether that be to protect from domestic abuse or prevent the dissipation of assets such applications can still be made and will be processed and dealt with by the courts with the urgency they require. Hearings that are procedural and not urgent are also still happening remotely allowing cases to progress as they would ordinarily. Hearings can however be postponed if a party does not have the technology available to participate or perhaps has the sole care of children at home and could not take part without either risking exposing those children to adult issues or not being able to balance care of those children and participate at the same time.
If you are involved in Financial Remedy Proceedings, the guidance is that the First Appointment can take place using paper (emails) only. This means that you and the other side (through solicitors if you have them) should agree directions prior to the hearing and email them to the court. For example, you can agree a date to answer questionnaires, or agree to instruct someone to value the family home.
The FDR (Financial Dispute Resolution) hearing should be done privately and remotely where possible. This means instructing a someone to act as a Judge (usually a barrister) to hear the case for you. This can be arranged in barristers’ chambers.
There may be some hearings that will need to be adjourned for longer periods of time because a remote hearing is not possible due to such factors as the nature of the case, number of parties and length of the hearing.
There are a number of benefits to remote hearings and lessons that can be learned from the way we have all had to adapt during the current pandemic to improve efficiency in future but for a number of family cases face to face hearings are likely to remain an essential element of the family justice system.