Divorce, Children and Money During Covid 23rd, September , 2020

Divorce is a stressful process during normal times. During Covid it is even more difficult for a wide variety of reasons.

When considering divorce  there are three major aspects to consider;

  • The divorce itself and the grounds of divorce
  • The welfare of the children
  • The financial situation

Covid has not changed the divorce process for the grounds of divorce required to proceed. It remains possible, in Scotland to seek a divorce on the grounds of unreasonable behaviour or adultery. Most people, however, only opt for one of these fault-based grounds if a financial agreement cannot be reached. Otherwise it is far more straightforward to petition for divorce on the grounds of one year separation, if both parties agree, or two years separation if there is no consent.

Covid has affected issues relating to the welfare of children in many ways. The effect that staying at home and not being at school with friends will have on children may not be known for some time. Some children may shrug off the changing environment easily. Other, perhaps more sensitive children, will find the new circumstances difficult. The restrictions at schools, having to wear masks and generally having their lives changed may produce increased anxiety. Sensitive children will sense the uncertainty of their parents and their teachers and this will add to their worry.

It obviously adds to the uncertainty when parents decide to separate and explain to children that their lives are going to radically change. The combination of Covid and separation is likely to upset any child irrespective of age.

Responsible parents who separate have to work hard on the narrative. They have to explain to their children that they are still loved by both parents, that the children were not the cause of the split, that they will have a meaningful ongoing relationship with both parents and that the parents will do everything they can to minimise disruption.

The problem with Covid, with the rules changing from week to week and children often not able to interact with their grandparents  is that the very stability that separating parents are trying to maintain for their children is so much more difficult to achieve.

There is no easy answer to this. Even without Covid it is difficult for children when their parents separate. Although sometimes there might be relief that they will not have to witness their parents fighting there is always a deep felt upset that takes time and parenting skills by parents to diminish. Things are  not as they were and children need time to adjust.

Covid just makes this more difficult. Who knows how long it will be until life settles down. The situation is unlikely to return to exactly the way it was before. There are likely to be restrictions and new rules for the foreseeable future. Obviously people are going to separate and divorce over this period. Unfortunately it is possible that more people will split because of the tensions that have arisen during these challenging times.

Covid increases the responsibility that parents have to their children. The level of love and support during an exceptionally difficult period will have to ramp up. Some parents may have the necessary skills. Others may need the assistance of professionals (not lawyers) trained to help families through these difficult scenarios.

If having to deal with the emotional aspects of separation and worry about what is best for the children is not enough, an agreement in relation to the finances also has to be achieved.

A written agreement between two legally represented parties is so much better than remaining in conflict and letting the courts decide.

Quite apart from the fact that there is real uncertainty in relation to the court process at the moment ( and that is likely to mean that any court action will take a lot longer) there is the cost to consider and the effect that being involved in a fight will have on the parties extended family and future relations.

There are many straightforward cases where agreement can be reached, and a  written contract entered into, without difficulty.

Even before Covid there were many cases where extensive negotiation was required before the matter was resolved.

Now, with the uncertainty that Covid brings, lawyers trying to help their clients reach  agreement are faced with circumstances  they are not used to and where previous experience may not necessarily help.

Looking at finances simplistically, each party is looking for a settlement that will ensure that they have sufficient income to live on and that they will receive a fair share of the matrimonial property.

There will be no separating couples whose finances have not become more involved or complicated because of Covid.

Many people had been furloughed and in the months to come many may be made redundant. Those who remain as employees cannot be sure that their employment will continue.Those who run businesses cannot be sure that their companies will survive.

It is the uncertainty about the future that causes the problem. The recipient of any type of ongoing maintenance is looking for a long-term binding agreement to provide them with security. It seems unlikely, in most cases, that will be achievable. Because of the changing circumstances surely agreements have to be entered into on a short-term basis with provision for review. Lawyers may say that there is already provision for this with the ‘material change in circumstances’ principle. But that was not designed to deal with variations that are likely to occur on a frequent basis. Going forward The ability for regular review has to be a feature of any Minute of Agreement.

The difficulty is not restricted to maintenance issues. In order to achieve a fair share of the matrimonial property  It should be accepted as a matter of course that accurate valuations of the different Items of matrimonial property should be obtained.

The concern at the moment is that the valuations of residential property and of pensions and investments are going up and down like yo-yo’s. The principle of obtaining a valuation at the date of separation , which has always seemed like an equitable way of going about things does not now look so clever. In normal times, the valuations of these assets would not fluctuate to anything like the same degree. If the principle of fairness is to be retained  a reasonable approach has to be taken or there has to be a change in the law. If a pension is worth £100k one day, £80K the next and £120K a week later the concept of valuing such an asset on one particular day does not make sense.

The word is that the residential property market is enjoying a miniboom at this moment in time. If that is right  a surveyor might attribute a high value to the matrimonial home. Does anyone anticipate that this miniboom will continue?  In fact  is it not likely that for the next couple of years house prices will be depressed as unemployment increases and first time buyers are forced out of the market. For a separating couple, this might not matter so much if the home is to be sold, but if there is to be a transfer of title there could be real injustices (this happened when house prices plummeted after the last crisis)

It can be easily understood that if it is not possible to obtain an accurate valuation for the matrimonial assets it is far more difficult to negotiate a fair settlement.

Because of all of the above, the importance of separating couples instructing experienced family lawyers to help them has never been more important. Covid means that the issues facing separating couples have become far more complicated and this is not going to change in the foreseeable future.

And the family lawyers need to add to their skill sets. It is no longer enough to be a good communicator and to understand the technical side of family law. If agreements are to be reached and settlements achieved family lawyers are going to have to be imaginative and innovative to assist their clients through these unprecedented times.

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