Family Law after Lockdown
As the country emerges from lockdown, some countries around the world have seen a spike in divorce rates. What legal issues might couples who have permanently separated have to deal with?
Separation or divorce?
Assuming that the couple are married, they need to decide if they wish to take steps for formally end the marriage.
While divorce law reform was passed in June 2020, those changes are not expected to come into force until mid to late 2021. Until then, couples who wish to divorce need to establish one of five “facts” – adultery, unreasonable behavior, or three others, which rely on living apart for at least two years.
Couples who wish to end their marriage without a two year wait (or until the new laws come into effect) will need to base the divorce on the adultery or conduct of their spouse to get divorce immediately.
Couples who live together without marriage do not need to take any formal steps, as there is no “common law marriage”.
If the couple are married, they usually have finances to untangle. This will firstly involve assessing the value of what the parties own, which includes (but is not limited to) property, bank accounts, investments, pensions, debts and business interests. They will also need to assess their need to rehouse, their ability to borrow on a mortgage and their monthly cost of living.
Next the assets have to be divided. The objective is a fair share but a fair share is not necessarily an equal share. That share can include the division of capital assets and whether there should be a monthly maintenance payment from one to the other.
Even if the couple do not have significant assets, taking advice to formalise the end of the relationship is essential. Financial claims on divorce remain open until remarriage, and a divorced spouse can be faced with a claim years down the line. This claim may not succeed, but will nonetheless have to be engaged with at financial cost.
If the couple are unmarried, division of property is very different. Claims are limited to either what assets are in their joint names, or, where one of them can establish a “beneficial interest” in an asset of the other. Beneficial interests can arise in a number of ways, either by express creation, or by drawing inferences from the way they have acted. Establishing beneficial interests is complicated and specialist advice should always be sought.
If the couple have children, regardless of whether or not they are married, decisions will need to be made about where the children live and spend their time.
The determining factor is always what is in the best interest of the child, and there are no set rules about how any particular child’s time should be divided between parents.
Parents also must co-operate over decisions concerning the child’s upbringing, such as choice of school, medical treatment etc., and agree child maintenance payments.
Sadly, the relationship may have involved abuse. Domestic abuse is not limited to physical violence and sexual abuse, but can include financial control, emotional abuse and coercive/controlling behavior. During lockdown, domestic abuse support services experienced a considerable increase in demand.
In addition to contacting support services and the Police, solicitors can offer assistance too. Court orders, known as non-molestation orders and occupation orders, can be sought to protect from abuse. It is important that the person seeking protection clearly sets out the allegations against the alleged abuser.
If an order is granted, this will direct an abuser to leave the person with the order alone, and can even require an abuser to leave the family home. If breached, the abuser may be liable to Police arrest or imprisonment.
If the matter is sufficiently urgent, an order can initially be obtained without notice to the alleged abuser, but they must be served with notice of that order, and the matter returned to court for review with both victim and alleged abuser present.
Untangling a lengthy relationship is inherently complicated. Taking early advice, before decisions are made from a specialist family lawyer is always of benefit and can help ensure that fair outcomes are achieved, and that they have proper legal binding effect.