Partner Claire Dyer, in our leading Family law team, examines the impact of the COVID-19 pandemic, resulting delays and new processes on divorce proceedings.
An Increase in Divorce Cases?
It has been suggested that the somewhat unique challenges presented by 2020 may lead to a spike in the number of couples seeking to divorce in the coming months, with a prolonged period of lockdown, childcare issues, concerns around employment and financial pressures, among others, said to contribute to any decision.
Yet Ministry of Justice figures, reported in a national newspaper recently, show that in the 12 months prior to lockdown (ending 31 March 2020), the number of divorce cases finalised in courts in England and Wales had already increased by nearly a quarter year on year, to 112,284.
However, according to the MoJ, which cited improved digital processes as one possible reason for the change which goes against a downward trend that has existed since the early 1970s, “The number of divorces finalised in 2019-20 was just 3% higher than the decade’s average”.
Practical difficulties in obtaining legal advice during lockdown has meant that some couples have delayed moving matters forward. Remote meetings have been extremely effective and worked well in many cases but these can be problematic to arrange when both spouses are in the same house. The recent lifting of lockdown restrictions mean that face to face meetings can now be conducted safely and may result in more people feeling able to take advice about how to proceed.
HM Courts & Tribunals Service has said that delays in processing paperwork and listing hearings will only be a “short-term” side effect of the pandemic, with social distancing, a backlog of adjourned hearings and pent up demand contributing to a slowdown.
Our local Family Courts have indicated that the preference for remote hearings is likely to remain well into next year. There are many advantages to hearings being conducted in this way but one of the disadvantages is that Judges have less flexibility to manage their hearings in an efficient manner, resulting in them listing fewer hearings each day.
Online processes are starting to improve and from late August 2020, Family Courts will be dealing with some applications in a digital format only which may assist in making some procedures more efficient.
To avoid delays in the Courts, couples are increasingly looking at private solutions to resolve their disputes. Private FDR’s, arbitration, round-table meetings, collaborative law, mediation and hybrid mediation are all ways to potentially bring the matter to an efficient conclusion without the need for Court intervention. Our specialist Family Law team can advise those interested in these alternative methods.
Divorcing couples who are looking to sell or buy properties may be looking to benefit from the Government’s current Stamp Duty ‘holiday’, set to run until 31 March 2021 and be keen to avoid any lengthy delays. However, there can be real risks and difficulties in selling or buying houses before a divorce is finalised and particularly where a couple has not yet reached and ratified an overall financial agreement. The rush to complete transactions regardless may add pressure to many, particularly if there is a delay in releasing sale proceeds whilst agreements are finalised. In some cases, alternative temporary accommodation may need to be found in the meantime.
Those with business interests and shareholdings may also find that uncertainty and volatility in the market affect the value of their assets and pensions in the short-medium term.
Some couples will find that the terms of a financial agreement which they were considering prior to the pandemic are no longer feasible due to a change in circumstances on either side. This may increase the need for further negotiations and in some cases, has resulted in additional litigation in order to overturn agreements which had been ratified by the Court just before the lockdown.
Parents may find the need to vary agreements or orders relating to arrangements for children as a result of the numerous changes to day to day life that the pandemic has brought. Likewise, many ex-spouses either paying or in receipt of spousal maintenance may find themselves having to revisit and potentially vary the terms of those arrangements as financial circumstances change.
The longer term outlook
Aside from any fallout from the ongoing COVID-19 pandemic, it has also been highlighted that The Divorce, Dissolution and Separation Bill, which will introduce the concept of a “No-Fault divorce to law by 2022, may also see the number of divorcing couples grow following the most significant change in divorce law for over 50 years. It remains to be seen when the new law will actually come into force but the hope is that this change will lead to a less acrimonious, more efficient process for those who have determined that their marriage has broken down irretrievably.
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This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.