Insights

When the government announced a national lockdown for the UK in March 2020 few of us had any idea of what we would be facing in both our personal and working lives. In the months that followed we all had to adapt to the ever-changing circumstances - and the processes involved in family law matters and court procedures were no exception.   Here we take a look back over the challenges of 2020 upon family law matters in detail. 

Covid-19 and its effect upon contact arrangements

At the beginning of the pandemic, the Government issued guidance stating that it was not permitted for a person, including a child, to be outside their home for any purpose other than shopping for essentials, exercise or medical reasons.  

This led to many people getting in touch to ask the question - Where does this leave children of separated parents who ordinarily moved between each household?  Thankfully, the Government soon clarified this and we were able to confirm that children under 18 years old whose parents had separated were indeed able to go from one parent’s home to the other’s, and that remains to be the case.  

During this very unsettled period, separated parents were encouraged to continue to adhere to agreed or court ordered arrangements for children as far as possible and as far as was sensible and safe to do so.  It was hoped that parents would act responsibly and reasonably and where a child or any person in the child’s household developed symptoms consistent with Coronavirus, the parents would be expected to make a sensible assessment of the circumstances on both sides and act accordingly.  

Communication between parents in any separation is key but this became particularly more so in these circumstances.  Where the usual contact arrangements could not legitimately operate we advised clients that alternative methods should be considered, such as telephone/video contact with the other parent.  The last year has led to a huge increase in the number of people utilising new ways of communicating and this has become ‘the norm’ for business, families and friends.  Although it’s not the same as physical contact, hopefully, this means that video communication can also be seen as some form of normal by children that are not able to visit a parent in person. 

Whilst in the majority of cases many parents did embrace the various guidance and act appropriately, sadly and perhaps not surprisingly, in some instances the pandemic has been used as a reason for one parent to deny or restrict contact with the other, whether legitimately or not.  In the beginning, little could be done to fully challenge such positions as at that point the courts had required to adjourn civil business including child related matters until August 2020.  This was frustrating and distressing for many parents so it was appreciated by all when the courts managed to resume civil business earlier than planned and we were able to hear parties and their explanations sooner than anticipated. 

Covid-19 and its impacts are likely to be around for some time, it may be optimistic but as a profession we would like to believe that the difficulties experienced during the pandemic have served as a reminder to parents of the importance and benefits of acting responsibly and reasonably and always in the best interests of the children. 

Aliment obligations

With Covid-19 having a major impact on the economy throughout the UK, it is little wonder that we have also witnessed a number of cases where parties have had some difficulty meeting their alimentary obligations. 

Despite the current circumstances, where parties have a formal written agreement as to the provision of aliment, whether in relation to child aliment or spousal aliment, such agreements and their terms continue to be enforceable against parties, unless a variation is agreed between the parties or ordered by the court, or varied by the Child Maintenance Service (CMS) in the case of child aliment.  It is therefore not difficult to imagine the conflict and distress that has taken place over the last year.   

A change in a person’s finances at any time can have considerable repercussions not just for the party themselves, but also for the recipient who relies upon the payment for either their own day to day living costs or those of the children. The speed at which Covid-19 escalated and continues to do so, resulted in many being subject to a furloughed wage or even being made redundant and this has had far reaching consequences for them and their families. 

At the beginning of lockdown where the courts were not in a position to determine these kind of matters, a lot fell on the parties being able to communicate and reach agreement, or upon their solicitors entering into negotiations on their behalf.  Our experience has been that in many cases parties have been relatively understanding where such a change in circumstance has been evidenced and temporary arrangements have been put in place between them, whether directly or via their respective solicitors.  However, we have also been required to deal with cases where a great deal of communication and negotiation has been required even to achieve a temporary arrangement.

As businesses continue to fight the financial consequences of Covid-19 and given the furlough scheme is set to continue in some form well into spring next year, it is inevitable that some will continue to face these type of challenges and it could take a considerable time to recover financially. 

Increase in cohabitants

Couples who were in a relationship at the start of lockdown but were not living together may have felt the need to progress their relationship much sooner than which they may otherwise have in ordinary circumstances.  Many couples took the decision to live together earlier in order that they could legitimately continue to see one another without breaching the Government guidelines, rather than remain apart, and for some this has led to the realisation that there can be consequences to such a decision. 

Whilst some couples may have revelled in the opportunity to put their relationship to the test in this way, it is likely that many of them will not have fully realised the potential legal implications there could be for them in the event they later went on to separate. This has inevitably led to some parties being subject to claims following the breakdown of their relationship which they were unaware of when taking the decision to live together during lockdown.

In Scotland cohabiting couples have limited rights to make a claim for financial provision on separation.   It is not quite the same as the rights afforded to divorcing couples and instead looks more at whether either party has suffered an economic disadvantage to the other’s economic advantage.  If a claim is to be made by one or both parties, it must be made within one year of the date of the parties’ separation.  Covid-19 has not altered this strict timescale.

Couples who have proceeded to cohabit during lockdown, even if the reason for that was simply because of lockdown, could have unwittingly left themselves open to potential claims in the event that their relationship breaks down, whether or not the period of cohabitation has been just a few months or otherwise.  

In the current circumstances where many people have found themselves furloughed from their normal employment or made redundant, they may well have looked to their other half for financial support during this time for example by meeting payment of the redundant party’s mortgage or making contributions to it throughout the period of cohabitation.   Parties may have joined their finances and doing so could make things very difficult to untangle later. Whilst this in itself may not be sufficient to secure financial provision on separation, it is something which new cohabitees should take into consideration, or should have, prior to taking the leap.

In the event of death of a cohabitee, where the deceased dies without a will, the surviving cohabitee has the ability to make a potential claim on the deceased’s estate.  Any claim must be made within 6 months of the date of the deceased’s death and again the current circumstances have not altered this strict timescale.  Where the cohabitation comprises of parties in a relatively new relationship, it is questionable whether the deceased party would have actually intended for the surviving cohabitant to benefit from their estate especially if they had only been living together for a very short time, but the potential for such a claim remains.

Anyone who has begun cohabiting during lockdown or is about to do so should still consider obtaining advice from the outset and give some consideration to entering into a cohabitation agreement to protect their position as far as possible.

The Courts

As we all began to find our feet in the pandemic so too did the courts.  It became clear relatively quickly that lockdown was likely to extend much longer than we may all have initially thought and the courts responded to that.  

Although the Scottish Courts and Tribunal Service issued guidance early on that indicated matters would likely be adjourned until August, in fact court business began to resume in around June, with the likes of remote hearings taking place for various civil matters and that has very quickly become the new norm for many family practitioners.  

The courts have even began to hold child welfare hearings remotely, which prior to the pandemic none of us would have likely thought possible, but it is happening and it appears to be working, and there is no reason to think it will not continue beyond the pandemic.

The courts have been as proactive as possible, adapting as and when required.  In some special circumstances the courts have been able to conduct some evidential hearings with witnesses appearing in person, with extra protection mechanisms in the form of face masks/coverings with all parties adhering to social distancing measures whilst in the court building.  

In reality it is perhaps not going to be possible for all evidential hearings to be conducted in this way and measures have been put in place to allow some evidential hearings to take place remotely, again something which before the pandemic we all would have thought would have been impossible.

Going forward

As we approach the end of the year it is looking less likely that we will be returning back to the old normal any time soon. Whatever is before us in the next year, we are perhaps more prepared for uncertainty then we have ever been.  Family law matters will continue to present themselves and we will all require to continue working with and adapting to the systems and procedures we have in place, however we are ready to face whatever is before us in the year ahead, even if that does continue to be from our own home using online technology to meet and speak with clients rather than showing them into the office!

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