The impact of COVID-19 on Family Law

Roger Mackenzie

Published by
Roger Mackenzie

14th May 2020

The COVID-19 outbreak is having a huge impact on our health, the economy and our day-to-day lives. It is affecting the way we socialise and stay in touch with loved ones, with Government distancing measures currently in place to help curb the spread of the virus and keep people safe. The effects of the pandemic are being felt across a variety of sectors in Scotland, including family law.

The UK has been under effective lockdown since March, and understandably, the restrictive measures have sparked concerns regarding child contact arrangements. Many parents and carers whose children are the subject of court orders relating to parental responsibilities and rights – such as contact or residence – have been left wondering how to adhere to orders safely. Court orders still apply and despite an initially confused message the Government has said that arrangements should wherever possible continue as normal. However, it is expected that parents or guardians will exercise common sense, act safely and adhere to Government advice and guidelines.

Where parents agree that arrangements set out in a court order relating to parental responsibilities and rights should be temporarily varied, they are free to do so. Guidance from The Lord President, Scotland’s most senior judge, advises each parent records such an agreement in a note, email or text message sent to one other. If, either as a result of agreement or of one parent varying the arrangements, a child does not get to spend time with the other parent as set out in the court order, the courts will expect alternative arrangements to be made to establish and maintain regular contact by use of videoconferencing platforms or telephone.

Unfortunately, it seems the aspect of the guidance which allows one parent to unilaterally vary the arrangements could be open to abuse and exploitation by parents keen to limit contact. Furthermore, for a parent deprived of contact with a child there is, in effect, no remedy available, as the courts are closed to all but the most essential business.

Some efforts are being made to unlock the court backlog and with great fanfare the Scottish Courts and Tribunal Service heralded the Kezia Dugdale defamation appeal case as Scotland’s first virtual hearing. While it is hard to imagine this was the most urgent case on the court rolls, the move to offer virtual hearings is a positive step forward.

Divorce proceedings are also being impacted. Some couples who were about to go their separate ways are now being forced to live together, as property transactions, an integral part of most divorce agreements, aren’t going ahead.

Until now, the Family Law Scotland Act of 1985 has stood the test of time. However, the current crisis is testing its very fabric. Significant changes in the value of property will bring into sharp focus the way we deal with divorce proceedings in Scotland. When determining fair sharing of assets on divorce Scots Law looks at the value of assets at the date of separation, so we will be working on the basis of properties, pensions and business interests valued several months ago. Due to the outbreak of COVID-19, many of these valuations may have changed dramatically. People may seek to renege on agreements reached on the basis of historic valuations. New boundaries will be drawn in relation to special circumstances arguments.

People’s circumstances are changing considerably as a result of coronavirus. Sadly, many have lost their jobs or are unable to work. With more people facing financial hardship, we can expect to see resources arguments come to the fore during divorce proceedings. We may see a situation for example, where based on assets on the date of separation, one partner is due to pay their spouse a capital sum. But now, they may not have the resources to meet the obligation. Similarly, changes to household incomes could result in child and spousal maintenance reviews and disputes.

This is an exceedingly difficult time for everyone concerned. There is a school of thought that we shouldn’t be resolving any cases while the financial outlook is so uncertain. However, there are many people in the middle of divorce proceedings who will simply want to move on. For some indeed they will embrace a new perspective which might see past enmities put aside to focus on what really matters.

 

This article first appeared in The Scotsman 

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