The last month has seen a seismic shift in the way we live our lives: what we eat and how we get that food, how (and if) we can socialise with friends and family, whether we go out to work and even how often we walk the dog. Virtually every aspect of day to day life has altered in some shape or form. However, one thing that hasn’t changed is that family law disputes still need to be dealt with.
The first question most clients have for a solicitor is usually ‘Can you help me?’ meaning what can the law do for them. Since the outbreak of the Covid-19 pandemic ‘Can you help me?’ has a dual meaning: what can the law do for them and, more fundamentally, is the law still operating?
The Rule of Law, the idea that every person is subject to the law, its guiding principles and its restrictions, is recognised as one of the fundamental pillars of a successful and productive society. It is because of this that the government has put measures in place to ensure that the justice system continues to operate despite the Covid-19’s grip on the nation. While a great number of court buildings have been closed, remote working which has been rolled out swiftly over the past fortnight means that the justice system, and Family Courts, remain open for (mostly virtual) business.
To our clients who ask us ‘Can you help me?’ our answer is simple: yes, most definitely, The International Family Law Group LLP is open for business (almost entirely) as usual. All the services we provided prior to the outbreak of Covid-19 remain available (though face to face meetings are now replaced by Skype and Zoom).
Court hearings are still taking place. Official guidance from the Family Court urges lawyers to deal with matters on paper or by settling matters privately where they can. If this is not possible or the proper administration of justice requires a court hearing, they can still go ahead.
Court hearings are going ahead using tele and videoconferencing and reports from the first few hearings indicate this system is working well. Her Majesty’s Courts and Tribunals Service has worked tirelessly, along with barristers’ chambers and solicitors’ firms, over the past two weeks to ensure as seamless as possible a transition to this new way of working. There remain wrinkles to be ironed out of course, but what mass roll out of new technology ever sees a totally snag-free start? The ultimate goal, which seems to have been met, is that hearings can continue fully, fairly and with minimal delay to the families involved.
Where a case, for whatever reason, still demands a physical hearing to take place in a Courtroom, arrangements are being put in place to allow this to happen in a way that is safe for all the participants.
Government guidance (despite some mixed messages from some politicians) is that where a child’s time is divided between two parents, that child should continue to see both parents subject to any general restrictions which may override those existing arrangements. The paramount consideration of a child’s welfare must now be examined through the lens of the welfare of the wider population.
Parents have been urged to use a common sense, co-operative approach to arrangements during this difficult time but it is not always possible (for a variety of reasons) for parents to settle arrangements themselves. Where that is the case, recourse can be had to the law, either through instructing solicitors to negotiate and settle arrangements or for applications to be made to the Family Court.
It is likely that any decisions, whether made privately between parents or imposed by a Judge, will need to accommodate two scenarios: interim arrangements for the period until the ‘lockdown’ ends and, if possible, the longer-term period after life returns to normal. The latter may not be feasible at the moment so it may be necessary to revisit arrangements further down the line.
In theory, a financial settlement can continue to be negotiated and then settled during this difficult period. A great many settlements are reached by consent and so do not require a Court hearing in any case. However, at the moment there are two main problems arising in relation to financial settlements generally.
The first problem is with practical implementation of financial settlements. A settlement is formalised by way of a Court Order. Breach of a Court Order is a very serious matter and there are penalties for doing so. Difficulties could arise where it simply not possible to give effect to the terms of a settlement. For example, if an Order states a property ought to be sold in three months’ time, given the shutdown of estate agents’ offices and restrictions on viewing properties arising from the limits on gatherings of more than two people, achieving a sale may be an impossible task.
The second problem is with quantifying assets. The first stage in reaching any settlement is to know what assets are involved and what their value is, individually and cumulatively. It may be difficult to obtain an accurate property valuation at the present time and the value of bricks and mortar property, as well as share portfolios and assets linked to them (such as pensions), are fluctuating, sometimes very significantly, day by day.
For some cases, seeking expert evidence (such as an actuarial report) or drafting in fallback provisions into any settlement may solve the problems. However, in several cases it may be more prudent to delay final settlement by a few weeks until a longer-term view of the markets can be taken.
For some settlements, there is scope to vary them. If maintenance is being paid (or claims in respect of maintenance have not been dismissed) there is likely to be scope to change the settlement to reflect a change in circumstances. Advice ought to be taken on the potential cost benefit of such action.
The 1987 case Barder v Barder dealt with appeals against financial settlements ‘out of time’, i.e. after the period in which an appeal can be made has passed. A financial settlement can potentially be revisited if within a fairly short period of time, new events invalidate the basis on which a financial settlement was reached or the assumptions leading to it. Additionally, any action to appeal should not be taken quite promptly following the new event(s) and third parties must not be prejudiced. The case of Myerson v Myerson in 2009 dealt with whether fluctuations in the stock market could be regarded as a new event justifying a settlement being re-opened. Despite ‘dramatic features’ being acknowledged, price fluctuations in the markets were not held to constitute a new event given they are ‘natural processes’ of the stock markets.
We are, it is continually being said, living in unprecedented times. Courts may be willing to look beyond Myerson and find Barder events in all sorts of circumstances arising from Covid-19. Only time will tell.
It is important to consider potential for variation of a financial settlement, or even whether that settlement been overtaken by new events, with a solicitor. The potential costs consequences of launching an abortive or ultimately unsuccessful application are likely to impact applicants more keenly than even in light of ongoing financial uncertainty caused by Covid-19.