Kerry Graham Partner and Head of Family and Matrimonial
Family law Q&A surrounding coronavirus
We are living in unprecedented times and coronavirus has had a significant impact on all of us in many ways.
Rebecca Aston-Jones, Senior Associate at Ince Metcalfes, answers some of the most frequently asked family law questions raised by her clients in these uncertain times and is interviewed about her experiences in this short video.
1. Can I stop my ex seeing our children because of coronavirus?
Contact arrangements should be adhered to as closely as they can - provided it is safe to do so. Unfortunately, we have seen an increase of breaches of contact arrangements over the last few months, as it seems some parties are looking to use the pandemic as an excuse to go back on previously made agreements.
If you do not have a court order in place and you have been prevented from seeing your child, you can apply to the court for a child arrangements order, which determines who your child will spend time with or live with; or if you have an existing court order in place, you may need to enforce this through the court if there have been breaches.
2. Can I vary a Child Arrangements order due to COVID?
Yes, most orders can be varied by agreement. If variations are agreed informally between you and your ex-partner, it is best to record these changes in writing so that they are properly documented.
3. I can now work from home remotely; can I relocate to another part of the country with my child/children?
The permission to relocate will always be required either from the other parent or from the court. It is important to take early advice if you are looking to move or if you are aware your ex-partner is thinking about relocating.
4. Do I need my ex’s permission to take our child/children out of the country?
This depends on whether you have a court order in place stating that the children should live with you or not. If you have a court order in place and the holiday won't last any longer than 28 days, you do not need permission to take your children out of the country. Unless your ex agrees, if you do not have an order set up, then permission from the court will be required. However, be mindful of the current Covid guidance in place in respect of the country you are visiting, as you and your children may need to quarantine when you return.
5. How can I get in contact with my grandchildren?
Even if there is a court order in place to see your grandchildren, it is unlikely the court will enforce it during these exceptional circumstances, especially if you are in a high-risk category. Alternatively, you could try to agree on an alternative safe form of communication in the interim, such as through online applications that allow you to see and talk with your family - for example Zoom, Whatsapp or Facetime.
6. My ex and I do not agree on the vaccination of our child/children against Covid - what should I do?
Currently there is no available vaccine for Covid, however if one becomes available and you cannot agree with your ex about medical vaccinations for your child/children, a Specific Issue Order can be made to the court to resolve the issue.
7. I have lost my job due to Covid, will this affect my consent order?
There is a chance that a lot of people will be in this situation due to the unforeseen consequences of COVID.
Although there is no legal precedent yet, a Court may view Covid as a barder event. A barder event is an unforeseen event that has occurred since the order was made that has fundamentally undermined the existing order.
The court has strict criteria which needs to be met to successfully establish a barder event. This criterion is highly fact-specific, and simply suffering financial loss as a result of Covid-19 will not necessarily allow you to reopen a final financial order.
Therefore, it is imperative that you take legal advice at the earliest opportunity - as successful barder cases are rare.
8. My ex can no longer pay maintenance as a result of the financial effects caused by Covid. What can I do?
You can make an application to enforce maintenance payments if the Court has jurisdiction to deal with this and your ex is in breach. If your ex has no income at all, the Court may look to other assets - such as their savings.
If you are not receiving Child Maintenance, you can apply to the Child Maintenance service, who will recover the payments for you.
9. Will my divorce/ financial matters be delayed due to COVID?
Unfortunately, there is a significant backlog with the court. A lot of hearings listed during lockdown were adjourned (except for urgent child court proceedings) which means the court are desperately trying to catch up with matters.
Some Courts have started to reintroduce in-person attendance in exceptional circumstances, but most hearings are still taking place remotely.
If you are keen to finalise matters, you might want to consider other options, such as mediation or arbitration, in order to reach an out–of-court settlement.
10. Can I delay agreeing a consent order with my ex until I know my job is secure?
Yes - provided your ex is willing to place matters on hold. If you are in the court process, you may need to apply to the court if you need to delay the proceedings until further notice.
Agreeing a financial settlement at present with your ex could be risky, and it is important that you take legal advice before committing to an agreement.
11. What impact has Covid had on pensions?
Some pensions are highly affected by market forces, such as defined contribution schemes and funds that invest in the stock market. On the other hand, public sector pensions, such as police, armed forces, NHS and teacher pensions remain unaffected. It is important that you take independent financial advice before entering any financial settlement with your ex to ensure you are aware of any risks.
12. I am lending my child money for a deposit so they can purchase their first property with a new partner.
Family and friends are supporting nearly one in four new house purchases in 2020, and we are seeing more and more scenarios whereby 'the bank of mum and dad' are funding first-time purchases. It is important that you as a parent take your own independent legal advice before lending funds and ensure that a formal loan agreement is drawn up setting out the terms of repayment.