11 June 2020

While everyone’s experience is different, most people who have been through divorce would agree that it is not an easy process. It can create much anxiety, stress and emotion.

For those currently going through divorce or are reflecting on their relationships and considering divorce, the COVID-19 pandemic has undoubtedly added another layer of uncertainty and anxiety.

There is, of course, never a perfect time to get divorced, but the pandemic has increased the number of queries clients are raising, who want to understand the impact on the divorce process, financial settlements and arrangements for children. This article seeks to address some of the most frequently asked questions on this topic.

Can I get divorced or should we put things on hold?

It is still possible to get divorced and reach a financial settlement with your spouse during this time. However, it is likely that the divorce process itself will take longer than usual due to backlogs the courts are experiencing because of temporary closures.

Putting things off until lockdown restrictions are eased or the pandemic is over may present risks as well as prolonging an already difficult situation for many families. Such risks range from the impact on the physical and mental health of individuals to the impact on the finances, such as changes to the value of assets including real estate, businesses and pensions. Each case will be different because of the unique circumstances of every family or relationship and therefore it is important to take advice early to consider the options and how best to proceed.

My spouse and I have separated but are currently living under the same roof. There is a history of domestic abuse. What support is available?

Lockdown has put a strain on many families but it is even more worrying for those who are experiencing, or have experienced, any form of domestic abuse at the hands of their partner, spouse or other family member. There are many organisations who are available to support people who find themselves in this situation and there are many ways of contacting the organisations discreetly. Details of some of these organisations are below.

If court intervention is required, the courts are able to make orders to protect individuals who have been the subject to domestic abuse. Typically the orders made are Non-molestation Orders which prohibit someone threating or using violence, harassment of intimidation, and Occupation Orders which may require the abuser to leave the family home if someone, including any children, is at risk. It is important to take advice about making applications for these orders and to do so as soon as possible.

My ex-partner/spouse will not let me see our children. What can I do?

Government guidance is that children of separated parents may travel between and spend time with both parents at their respective homes.

Despite this, some parents are using the pandemic as a reason to stop their children seeing the other parent. Whilst there may be some cases where there is rational reasoning behind this, such as where a parent is shielding because of health issues, sadly in other cases the pandemic is simply being used as an excuse. 

Each case will need to be considered on its particular facts, but where the reasoning is questionable, it may be possible for a parent to apply to court to obtain a court order setting out the arrangements for the children or to enforce an order that is already in existence. Hopefully, an application to court will not be required and open communication between the parents, perhaps with the help of a third party such as a mediator, will resolve the issue.

If we have started court proceedings, can we carry on with the court hearings remotely?

In most cases the answer is yes, but subject to the court being able to accommodate a hearing. Although many courts have had to close temporarily, many are still accommodating remote hearings via telephone and video link. This is particularly the case with short directions hearings, where the court will arrange for the Judge, the parties and their legal representatives (including solicitors and barristers) to join the hearing remotely. All that is required to participate is a computer, phone or iPad/tablet.

So far, these hearings have mostly been conducted effectively. The most important aspect from a technology point of view is having a good internet or phone connection. Parties will also need a quiet place where they can have confidential conversations where no one not involved in the proceedings (and in particular, children) can overhear.

Despite the court being able to arrange some hearings remotely, due to some court closures, some hearings are being delayed. Typically, this is where there were due to be Final Hearings during which parties and/or witnesses would have been required to give live evidence. The court has to ensure that a fair trial can happen and in some cases (i.e. particularly those involving children) it may be that adjourning until a hearing in person can take place, is the only option. It is entirely at the Judge’s discretion as to whether the hearing should proceed.

Although some court hearings may be delayed, much of the work involved in divorce, financial remedy and children proceedings is done before or in between hearings. There is no reason why that work should not continue as normal and if a hearing is delayed, there any be alternatives – see below.

What are the alternatives to remote court hearings?

If a court hearing is adjourned, or there is a likely to be a long delay in receiving a court listing, some alternatives that can be considered are:

1. Dealing with the hearing on paper and dispensing with the hearing

The courts are increasingly encouraging parties to avoid the need to attend court at all. This is particularly relevant for directions hearings, where discussions can be had between the parties and their legal representatives about the directions they would like the court to make. If agreement is reached a consent order can be submitted to the court for a Judge to consider in private, without the need for a hearing.

The most common hearing this is likely to be suitable for is the First Appointment, which is the first hearing in financial remedy proceedings. In practice, directions are often dealt with this way, provided the parties can agree the directions they want the court to make.

2. Private FDRs in financial proceedings

If the parties agree, it is possible to circumvent the court process and hold a Financial Dispute Resolution Appointment (“FDR”) in private. The FDR is the second hearing in financial remedy proceedings. It is a Judge led settlement meeting and the majority of cases settle at this stage.

Private FDRs are already a common method of resolving disputes outside of the court process because they tend to be a lot more efficient than the court process. This is because:

  • The parties can choose their own Judge (who will be paid to attend) and this means they will have a financial remedy specialist, which is never guaranteed in the court process.
  • The Judge will be available for the whole day, rather than an allocated hour as is usual within the court process.
  • The Judge will have read all of the papers in detail and have a clear understanding of the issues in dispute, which is not always possible in the court process as Judges have very busy court lists and hear multiple cases in one day.

Private FDRs can be held remotely and have a high success rate. The experience for parties tends to be significantly better than attending court and often results in a swifter resolution.

3. Arbitration for financial matters and those involving children

Arbitration is a private dispute resolution process where the parties jointly appoint an arbitrator (a specially trained independent third party) to resolve the dispute. The arbitrator’s award is binding on the parties. Arbitrators are all specialist family solicitors, barristers or retired judges. The process can be entirely tailored to the parties’ requirements. It is often much quicker and more cost effective than the court process and is conducted in private. It can be done remotely via video link or telephone if the parties agree.

Given the delays the courts are experiencing, now is a good time to consider arbitration. Even if financial proceedings have begun in the court process, it still may be possible in certain situations to use arbitration instead of having a Final Hearing or a hearing about a discrete issue which may otherwise not be listed for some months.

If we have not started court proceedings, what are the alternatives to going to court?

There are many alternatives to going to court. It is usually better to try to reach an agreement without involving the court and issuing an application should be the option of last resort. The alternatives include:

  • Reaching an agreement directly with legal advice in the background
  • Mediation, which is where a mediator will act as a neutral facilitator to help parties reach an agreement.
  • Arbitration (as explained above)
  • Voluntary disclosure and negotiations between the parties with the help of solicitors
  • Early Neutral Evaluation (which is a joint opinion from a barrister)

The particular circumstances of each case will determine which of the above is most suitable as an alternative to court. Taking advice at an early stage means clients are able to consider what the options are and which are most suitable.

What should I do if I no longer think the financial agreement I have reached with my spouse is fair, because of the impact of COVID-19?

It is rare for a Financial Remedy order to be set aside by the court and the issues reopened for consideration.

However, there are certain circumstances where an order may be set aside and one of those is where an event occurs that was unforeseen. These are known as Barder events following a case of the same name in 1988. Since then, only a handful of cases have been successful in their application to set aside and reopen the issues.

Whether the COVID-19 pandemic amounts to a Barder event is unclear, but there may be circumstances where could be. It is therefore vital to take legal advice as soon as possible to consider whether to make a set aside application. Further information can be found in this article.

Even if setting aside an order is unlikely, it may be possible to vary an order for the payment of a lump sum depending on the type of order originally made. It may also be possible to vary maintenance payments. Further information can be found in this blog post.

Can I instruct a solicitor?

Yes. It is still possible to instruct a solicitor without physically seeing one. We are set up to conduct meetings remotely and can perform all of our client verification requirements electronically.

Written by Charlotte Prideaux and Richard Handel.

Key contact

Richard Handel website

Richard Handel Partner

  • Family Law and Divorce
  • Private Client Services 
  • Private Wealth

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