In this article in Harper’s Bazaar magazine, Carly Kinch, a partner in our Divorce and Family team, talks us through the most common questions about divorce being asked amid coronavirus.

For many, the most pressing lockdown issue being faced is whether or not to properly get dressed, or whether you’ve managed to get outside for your daily hour of exercise. Those are the lucky ones. For others, being forced into confinement brings with it a whole other selection of problems – from mental health issues and childcare concerns to a devastating increase in domestic violence cases. The often life-shattering issues of divorce and separation fall into the latter bracket, too.

Spending more time at home typically causes spikes in new divorce cases in ‘normal’ life – for example, at Christmas and around the New Year, or after the school summer holidays – due in large part to families spending prolonged periods of time together. So, it comes as little surprise to find that divorce lawyers are anticipating a spike in the number of separations arising from the current pandemic.

“Already fragile relationships are unlikely to survive the additional personal and financial strains that lockdown and the crisis generally will cause,” Carly tells Harper’s Bazaar.

Below, Carly highlights the most common questions around divorce and separation that the firm has been asked in recent weeks, plus the all-important answers.

Is it possible to start divorce proceedings during a lockdown?

“The short answer is yes. The court has moved forward a decade in 10 days.

“The High Court, for example, is at the forefront of embracing the new virtual world and the judges are doing all they can to ensure ‘business as usual’ in so far as is possible. Some smaller, regional courts however are struggling with limited staff numbers and outdated technology, which has led to hearings being vacated and kicked off into the long grass.

“An individual that wants to divorce doesn’t need to feel trapped in their unhappy marriage – despite the country currently being in lockdown. But there’s obviously be a number of important practical issues to consider, such as immediate living arrangements, care of children and interim financial arrangements.”

Is it a good idea to start divorce proceedings during a pandemic?

“The pros and cons will be different for each couple as no two divorces are the same.

“There’s obviously an awful lot of uncertainty currently – whether that’s how long schools will be closed for, or the impact on the wider economy and what that means for individuals in terms of the value of their homes, investments, pensions et cetera, or questions as to whether a business will even survive.

“Many people will think that there’s just too much uncertainty to consider making such a significant life-changing decision now; others may take the view that the economic uncertainty gives them a ‘perfect storm’ of a backdrop against which to separate, as any financial awards or settlement might be lower than they would otherwise be in normal economic times.

“However, it’s important to bear in mind that even if you were to take the decision to divorce today, any financial settlement or award will be based on the value of the assets as they then are. If there are fully contested financial proceedings, the final hearing is likely to be in more than 12 months’ time. Who knows what the economic landscape may look like then, but it will almost certainly be different to what we see today.”

What should couples do who decide they want to separate but are currently stuck in lockdown together?

“Take advice from a specialist family lawyer as early as possible and preferably before any discussion of divorce with your spouse.

“I continue to be surprised, even after more than 10 years’ in the industry, by the wildly different levels of acrimony between divorcing spouses.

“At the most extreme end you have the ‘war of the roses’ couples who, having made the decision to separate, simply can no longer bear to be around one another. Those couples would need to consider whether it would be possible given the lockdown for one party to move into separate accommodation. If not, then one of the few options is to look at how is the family home can sensibly be segregated to try and minimise tensions until restrictions are lifted.

“At the other end of the spectrum, you have the couples that, although separating, still have a huge amount of respect for one another and will be able to continue to live together (albeit separately) relatively harmoniously.

“Clearly, if you have children, it is vital that they are safeguarded from whatever tensions or acrimony there might be between their parents. Whether that leads to a decision that one party should leave the family home or that any talk of formal separation is put on hold until the restrictions are eased, will depend entirely on that particular couple.”

What are the dos and don’ts of separating during a global pandemic? What should be taken into consideration?

“Do:

• “Consider whether therapy or couples counselling might be worth exploring before taking a final decision to divorce.
• “Consider the practicalities (physically, emotionally, financially) of separating in the current climate both on you and your children, if any.
• “Take advice and then time to reflect on that advice before making any final decisions.”

“Do not:

• “Act first, think later.
• “Take steps in haste that you may regret when normality eventually returns.
• “Think you are stuck and can do nothing to change or improve the situation.”

What is the guidance for separate parents with regards to custody or co-parenting during lockdown?

As an exception to the general ‘stay at home’ rules, children of separated parents can move between their respective parents’ homes. Guidance issued by the president of the Family Court, Sir Andrew MacFarlane, has clarified that, although movement of the children between households is permitted, this does not mean that it is mandatory even if, in the ordinary course that could technically amount to a breach of a Child Arrangements Order.

“Inevitably, some parents will have differing views as to whether it is safe and appropriate for their child to move between two homes. That question will depend on a sensible assessment of all of the circumstances, including the health and wellbeing of the child, the risk of infection and the presence of any recognised individuals in each household.

“If the decisions taken by one parent were challenged by the other, the court will scrutinise each party’s conduct and whether they acted reasonably in the light of the then-current government guidance and the particular circumstances of that child/family.

“If a child is not spending time with both parents (either by agreement or otherwise), there is an expectation that alternative arrangements are put in place to ensure regular contact between the child and that parent, for example contact via Facetime, Zoom, Skype or telephone.”

How should home- schooling work if a child splits their time between two homes?

“Most independent schools seem to have opted for online learning platforms which involve a child either logging in through a portal during the school day to participate in live-streamed or pre-recorded classes and/or to download work.

“Parents will need to communicate openly and transparently with one another about learning, but it should be easier than when books and homework diaries needed to be transferred between homes.”

What advice do you have for a divorced parent who might have lost their job and can no longer afford child maintenance payments?

“What is important to understand about child maintenance is that it is always variable, up and down.

“If the paying parent loses their job and it seems unlikely that they will likely secure alternate employment in the relatively short term and/or they do not have capital resources from which to cover the maintenance while new work is found, then this change in circumstance would justify a variation of child maintenance obligations.

“If it is not possible to agree a reduction or suspension of child maintenance payments, either in direct discussion between the parents or through mediation, then the Child Maintenance Service has a formulaic approach to calculating the amount of child support, but provided the paying party has a salary of over £156,000 per annum (or the original child maintenance order is less than 12 months’ old) then the court can set the level of child maintenance, typically at a higher level.”

Can your challenge child maintenance obligations and financial agreements during a pandemic?

“See previous answer for challenges relating to child maintenance obligations. But there could well be a flurry of what are known as Barder applications. This is essentially an application to set aside and revisit a final agreement or award.

“The 2008 global financial crisis precipitated a spate of Barder applications, but none succeeded, as the courts took the view that markets by their very nature fluctuate while the value of shares and businesses rise and fall, often unexpectedly, often dramatically. As for coronavirus, while it and its impact was unforeseeable, market fluctuation itself is not. This is the ‘Catch 22’ that lies at the heart of Barder. The critical question is whether the impact of the current crisis is distinguishable from that of 2008.”

What advice would you give to a divorced couple who currently live in different countries, and how might time with their children work moving forward?

“The issues for international families are wide ranging. The bulk of our cases have an international element to it.

“I know of one family where a foreign court ordered that it was in a child’s best interests to live permanently in England. That move should have already taken place but has not yet been possible because of the various travel restrictions that are in place. That family have had to discuss and agree interim arrangements for the care and education of the child until she can return to London.

“In other instances, parents are being prevented from spending time with their children either because they cannot travel to England or because the child cannot travel to them. For these families there is an increased focus on indirect contact (via FaceTime, Zoom, Whats App) now and, inevitably, discussions will lead to questions of missed time being made up as and when travel restrictions are lifted. This could result in disproportionate division of, say, school holidays when these might have ordinarily been shared.

“As the global situation evolves, and different countries ease restrictions at different times, a situation could well arise when the government restrictions of the two relevant countries are inconsistent and parents take different views on whether a child should travel or not. Again, I think this will require a sensible assessment of all of the circumstances, balancing the potential emotional harm to the child of prolonging the time they do not have direct contact with one parent, against physical health and wellbeing of the child and the risk of infection.

“Parents are to be encouraged to behave reasonably and to establish good lines of communication with their ex-spouse. Undoubtedly, however, there will be parents who seek to use the lockdown and travel restrictions as an opportunity to either to spend more time with their children or otherwise to restrict, whether reasonably or not, the other parent’s contact. How robustly the court will deal with such individuals is yet to be seen.”