How has COVID affected the divorce process?

Posted 24th Jul 2020 in Family Law

Even before the recent pandemic, the family courts were stretched and backlogs were starting to build up.  During the crisis the situation predictably worsened and as solicitors and the courts tried to work out how best to manage the restrictions and meet the needs of our clients, the delays worsened and proceedings have become even more protracted.

To complicate matters further, the delays weren’t limited to the legal process.  Social distancing made it harder to call on the other experts (for example single joint experts and valuation specialists) sometimes needed to reach a divorce settlement.  Meanwhile, it also became harder to sell key assets like the marital home or predict the impact the crisis was going to have on a business’ performance or future earnings.

However, despite a tricky start the majority of cases have kept moving albeit a little slower than they should.

First and foremost this is because everyone involved has remained committed to keep going as best we can.

For solicitors this has meant learning all sorts of new things.  We not only needed new ways to communicate with our clients, but also to keep giving them the emotional support they need at what is always a difficult time but at the moment is even harder while we’re isolated from friends and family.

We’ve tried everything we can to keep things as close to normal for our clients.  Traditional conferences in our offices have been substituted with video calls and many emails have been replaced by phone calls so we can maintain personal contact.  Looking all the way back to March and April I can’t help but think how lucky we are that we have so many easily accessible options on our phones and, given we’re pretty much all using smartphones, how much easier they have made it to keep the wheels turning!

And when it comes to the courts, they’ve also tried their best to keep going.  A few have understandably had to close but the majority are currently either classified as ‘open’ with judges, lawyers and clients able to work as usual so priority cases can be heard or ‘staffed’ which means judges are in attendance but only able to conduct remote hearings.

Remote hearings require the case to be presented to the judge via the telephone or, increasingly, using video conferencing platforms.  Remote hearings have been used in certain areas of law for some time but have only really been adopted by family lawyers during the last few months as we struggled to find workable ways to make sure our clients’ cases continued to move forward.

There is a preconception in some areas that remote hearings are the only option but this is definitely not the case. 

If your case demands attendance at court (i.e. if the interests of justice require a face-to-face hearing), the courts are still facilitating some face-to-face hearings with protective measures in place to keep you, your representatives and the Court staff and Judge safe.  If you’re unsure whether your case should be heard in person, please get in touch and we’ll discuss the available options with you.    

It is important to remember that even if your case is eligible (legally speaking) to be heard in person, judges are making decisions on individual cases on an almost daily basis.  This means that even if your case is listed, you may find it is adjourned (or postponed) at very short notice.

Obviously this blog is focussed on the cases that were already in motion when the pandemic hit and one of the questions we’re being asked more and more frequently is whether a client can start a new case. 

The easy answer is you can.  We are still able to send your papers to the court to make the initial application for divorce, applications relating to your finances following divorce and also applications relating to arrangements for your children. 

After that things are less predictable. 

The courts remain committed to processing papers as usual but can’t give any definite timescale. This means new cases are likely to take longer than they would normally and that is again subject to the additional delays the pre-COVID backlog I mentioned at the start of this blog.  As a department we have always promoted alternative methods of resolving disputes such as mediation, the collaborative model, private FDR hearings and arbitration.  It is now more important than ever to consider all options for resolving disputes following the breakdown of a relationship.

If this blog has raised any questions you’d like me to answer or you are considering a divorce and would like an initial and informal chat about what you should do next, please call me on 020 8866 1820 or email me at [email protected]