The Mishcon Academy digital sessions – conversations on the legal topics affecting businesses and individuals today.
In this episode, what are the legal and financial implications of COVID-19 and the lockdown for separated families and couples? How can parents adapt? And what recourse do individuals have if their situation becomes even more difficult? Plus, what about all the speculation that post lockdown, divorce lawyers will be overwhelmed by a revolving door of unhappy spouses?
Hayley Geffin
Hello, and welcome to this Mishcon Academy digital podcast. I'm Hayley Geffin, Head of Communications at Mishcon de Reya and I am joined by my colleague Barbara Reeves, Partner and Practice Lead for our Family team. Rising to the challenge of social distancing rules, we are recording this podcast over the internet, each of us speaking from our own homes. So Barbara, are you being inundated with people contemplating a lockdown divorce?
Barbara Reeves
Maybe that's how it’s being reported, but that's not the position right now. I think the full impact of this current crisis on separated families and couples is unlikely to be clear for some time, but that said, as family lawyers we're certainly used to dealing with families under various pressures and stress. Self-isolation certainly brings it's challenges and at the moment I expect people are struggling with other issues such as their family and their health and home schooling. We are all effectively living in one space and this is clearly a time of significant stress and the uncertainty of one's employment. These are extraordinary times for anyone, let alone a family who are in the midst of say their own family crisis, but that doesn’t mean to say they are telephoning to discuss issuing divorce proceedings.
Hayley Geffin
As you say, you have lots of experience with families and couples in crisis. How do you deal with that?
Barbara Reeves
As a family lawyer, we are connected with a variety of other professionals to help any family in crisis, because the Court, whether the issue is one of financial or children issues, the Court should be a last resort. In my experience, most situations can be improved with the support and guidance of therapists and counsellors.
Hayley Geffin
If however couples do reach that last resort, what are the financial implications of separating at this time?
Barbara Reeves
Well if a relationship has completely broken down, there are certainly several factors to be borne in mind. The timing of a divorce is often key and particularly in these extraordinary times as to who can say with any certainty whether the value of family assets such as your home and business is clearly understood and this will be of particular relevance depending on whether you are either the financially stronger or the financially weaker party. If parties to a divorce are seeking to divide their assets, there is a real risk that values attributed now to those assets will prove inaccurate in the coming weeks and months and there are practical implications of how to obtain a property valuation when a valuer may not be able to visit the property and even couples hoping to sell their home in order to rehouse may find it difficult to sell in the short time. One option is to delay any financial proceedings until the impact on say one's home and business and investments is better known. Another option is to consider sharing the risk and by that I mean, if a large proportion of the assets are held, for example in shares or a business, rather than just one party taking those shares and the other retaining the more, what we would describe as copper bottomed assets, it's maybe more prudent to share the risk laden assets as well as the more stable ones. Overall, my advice would be that you do need to carefully consider as to how best to proceed. If you are on the point of separating or considering your options, legal advice should be sought as soon as possible because there are other forms of dispute resolution which we recommend for any couple seeking assistance with say their financial settlement or children issues and these include mediation and arbitration. They are highly successful options to the Court process and we do encourage them.
Hayley Geffin
You mentioned children's issues there. Certainly, something that has come out and was widely publicised, was how separated parents would adapt. What have you found?
Barbara Reeves
Yes, well we are in the middle of a public health crisis on an unprecedented scale and parenting can be difficult at the best of times let alone if you are in the process of separating or trying to co-parent during the lockdown. The priority is really to remember the current situation will be causing most children various levels of anxiety and so it is even more important than ever to minimise any parental conflict and sadly there are many parents where commutation is difficult or impossible and if agreement can't be reached or one parent say feels that they are being unfairly excluded from their child's life, while a court application can still be made, I do stress that this should be very much a last resort. Where parents can work together, they will need to focus on making a sensible arrangement. It's simply no good slavishly sticking to an arrangement that is not working and there has been some guidance on this from the courts that during a crisis parents need to exercise their parental responsibility and if necessary to vary an agreement, but that said, what the courts don’t want to see is where one parent may use the current situation to actively undermined the child's relationship with either parent or indeed unilaterally change that arrangement so practical arrangements may need to change and if that's occurred and one parent is seeing less of their child, then alternative arrangements need to be considered. We are all becoming very well acquainted with Zoom and other video connections so perhaps more calls need to be made. Perhaps a child needs to make a video for the parent that they are missing. If one parent is missing out on time with their child then perhaps additional holiday time should be compensated later in the year, but if you can't agree, then you do need to consider perhaps engaging with a mediator over a webcam meeting or engaging with a trusted friend or family member. Somebody who is neutral and is going to be able to reach out to you both and try and facilitate some sort of agreement because the key here is good communication and parents being as flexible as possible with the arrangement.
Hayley Geffin
In terms of the Courts, what have they said about existing Court Orders and how flexible can or should parents be in relation to those?
Barbara Reeves
The court's position is these extraordinary circumstances should not be used by a parent to undermine or unilaterally vary a Court Order unless say by agreement. Clearly one needs to exercise one's parental responsibility in the best interests of a child and the Court would expect to see if there has been some form of variation of a Court Order that it has been by agreement and that all efforts are made to ensure that good quality contact is established and maintained with the child should it be that a parent is seeing less of that child.
Hayley Geffin
And so in these unique circumstances, what recourse do individuals have in a parental situation if one party isn’t behaving well?
Barbara Reeves
In such difficult times, and people do have difficulties and anxieties and they may take a different approach as to the risks that they feel their children should not be experiencing. If you can't agree on the change of arrangements, you do need to try and find a way to communicate this with the other parent to try and reach an understanding so that you can both feel reassured that the level of contact and the movement of say children between two homes is being facilitated in such a way that is in the best interests of the child. If you can't do this then I would suggest that you meet with a mediator to try and find some common ground and for any issues to be addressed. Alternatively, court is an option but it is very much a last resort.
Hayley Geffin
Well, for now, let's finish there. I would like to say thank you so much to Barbara Reeves for joining me on this Mishcon Academy Digital Sessions podcast. I'm Hayley Geffin and in the next episode, join my colleagues Steven Bostock and Natalie Loader talking about immigration and brexit. Yes that's right, that B word hasn’t gone away.
The Mishcon Academy Digital sessions are a new series of online events, videos and podcasts all available and mishcon.com. If you have any questions you'd like answered or suggestions of what you would like us to cover, do let us know at coronavirus@mishcon.com. Until next time, take care.