A toolkit for family breakdown in the lockdown

For me, and my colleagues across the country, being a family lawyer means being there for all the challenges, not just the day in court, and at this time we know it is more important than ever that we are available to advise, encourage and support. It is likely to involve new ways of working when face-to-face consultations are out of the question, and private telephone calls may be impossible, but even though law firm offices are closed, everyone is working to keep the doors open to support families through the crisis.

In China, which was first into lockdown following discovery of the virus, there have been reports of a huge surge in divorce petitions as couples emerge from the country’s stringent restrictions, with one city official in Hunan province quoted as saying that what may have seemed trivial in normal life had escalated for many couples struggling to deal with the exceptional circumstances. And a divorce lawyer in Shanghai reported a four-fold increase in caseload while commenting that incompatibility had replaced infidelity as the primary reason for seeking divorce. ^Bloomberg

For those in the UK who were considering or had already started the process of divorce, many will still be living together, adding to the pressure of the current lockdown. For those struggling under the relentless strain of being in each other’s company 24/7, it will be hard to find a way to release the pressure to see clearly whether the relationship has run its course, such as through couples counselling or simply taking a break from each other.

And while no-fault divorce is likely to become law once the legislation resumes its progress through Parliament, for now couples must continue to deal with one party being ‘blamed’ for the breakup or wait for the change in the law.

Grounds for divorce under the existing Matrimonial Causes Act 1973 require one party to prove their partner is at fault through adultery, desertion or unreasonable behaviour. Alternatively, and only if both sides agree, they can part after two years of separation. If no fault is given, and one party does not consent to the divorce, then the period of separation is extended to living apart for five years.

For those who feel compelled to act now, or as soon as we come out of lockdown, it is likely that we will see unreasonable behaviour cited as the most common ground for such divorces. Most recent statistics for opposite sex couples show 36.8% of all husbands and 51.9% of all wives petitioning for divorce on this ground.

But petitioning is only the start of what may be a long journey, with the process of divorce, negotiating over finances and family arrangements, becoming ever more complex. That’s in part because there is more at stake, particularly for middle-aged couples, when couples come to hammer out a fair division after a marriage breakdown. Wealth statistics from ONS show that by 2014 half of all households had total wealth of £225,100 or more.

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. 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.

Progressing divorce:

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.

Maintenance arrangements:

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.

Co-parenting:

Where parents are living in different households, the Government has clarified the advice on how to approach co-parenting.

Children under 18 whose parents are living apart can move between the homes of their parents, in an exception to the mandatory stay-at-home rule for us all. But this does not mean children should move around without weighing up what is best - such as the health of all concerned, the risk of infection and how and where any handover takes place. If one parent is a key worker, then it may be sensible for the other parent to look after children, to reduce infection risks.

And if, for any reason, a child will not spend their scheduled time with one parent, the courts expect regular contact to be maintained through other means, such as FaceTime or Skype.

Importantly, any variation to current arrangements should be agreed between you, and put in writing wherever possible, whether a letter, email or simply a text exchange. Guidance says 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".

Where there is a disagreement on arrangements, then seek advice. Whether for enforcement or to apply for a change to the contact arrangements, court hearings are continuing, although the default is via phone or video link.

The most important thing for children is that parents avoid conflict. Movie stars Bruce Willis and Demi Moore may have divorced 20 years ago, but they are exemplary co-parents – even sharing lockdown time together with their adult children in California.

In her recent autobiography Moore wrote that it wasn’t easy at first “but we managed to move the heart of our relationship, the heart of what created our family, into something new that gave the girls a loving, supportive environment with both parents. We felt more connected than we did before the divorce.”

That’s a great position to be in, but for those who struggle to emulate such an example while going through a breakdown, it’s important that you do all you can to avoid weaponising disputes and that you keep arguments away from children.

Finally:

China experienced a surge in reported domestic abuse during the lockdown, a factor unfortunately being reflected in the UK according to early reports, so while it may be a very hard call to make, in the current situation it’s more important than ever that you seek support from your professional adviser or the police if abuse is taking place.

For those where there is no physical risk, it’s still important to act if you need help, so don’t sit on it. Reaching out to your adviser and receiving some impartial support may be just enough to keep things on a more even keel while we continue through the lockdown.

If things have gone too far to be resolved, then receiving advice on what is feasible and how to approach conflict could make all the difference. You may not be able to speak on the phone or video conference if you are in lockdown with your partner, but having an email exchange with your adviser, or a live chat on social media like WhatsApp or Messenger, can bridge the gap during the current crisis. Family lawyers will be making themselves available to their clients in whatever way is needed in the current crisis.