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FAMILY/MATRIMONIAL: An Introduction

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Family Law Practice Area overview - Alexiou Fisher Philipps

To have one social or political upheaval that affects family law in one year is significant but to have two massive social and political upheavals is something no current practitioner may experience again.

So, in the momentous context of the COVID-19 pandemic and Brexit this overview focuses on the things that have changed, and that are just about to change again, and not so much (reader please forgive) important case developments. Of course, much case-law will follow from both events. Divorce challenges will be reported arising out of asset value changes which the pandemic has caused, and so too with Brexit there be will new arguments about the right forum and interpretation of new rules as we move from the world of Brussels regulations.

Coronavirus – the short-term shock 

When the COVID-19 pandemic washed across our shores in mid-March 2020, access to court was initially significantly reduced. Court staff and judges were in short supply. This was despite very early attempts by the President of the Family Division of the High Court to keep the show on the road. As early as 19 March he issued a circular, "COVID-19: National Guidance for the Family Court," and told practitioners that: "There is no category of case that may be listed in the Family Court which necessarily requires the physical attendance of key participants in the same courtroom."

The President later said in April of a fact-find hearing case management appeal by a mother in Re P (A Child: Remote Hearing), regarding placement of a child, that "the postage stamp image" of Skype was a “very poor substitute to seeing that person fully present before the court.” He seemed to be retreating from digital hearings.

So which approach is it? Actually, remote hearings have won the day. Necessity is the mother of invention and has forced the courts to permit remote hearings because they are easier, more efficient and safer. The President later issued in June a letter saying the backlog of child protection cases, and the likely length of the pandemic, meant remote hearings, and shorter hearings were now a necessity in most situations. For important children hearings, where both parties seek it (or even one party) a physical hearing may well still be permitted.

Who misses going to court for short interim hearings? Clients and lawyers have better things to do than travel to these.

What about final hearings? In financial cases (and probably also in some private law children cases) is there really a difference in assessing witness demeanour close up on a remote video app screen than across a courtroom? Even if there is, the President says he wants quicker, more efficient justice.

Mr Justice MacDonald has issued his Remote Family Access Courts guides to help lawyers navigate all the tech wizardry of remote court hearings.

When lockdown came swiftly in March, we have noticed on children cases that international clients were quick to make decisions about where was home for them. Human behaviours which we have seen in agreeing what should happen to children ranged from sensibly negotiated arrangements to, sadly, cases of international child abduction where a child was denied the other parent for months.

The President’s guidance on child arrangements of late March said that the courts would look back and assess the behaviour of parents who had not complied with court orders during the pandemic. We doubt it though. It will be hard for the wronged parent to show bad faith in many situations when so much about this virus, and the associated health compliance measures, are new and uncertain. Also, the world will have moved on eventually and there may be little time for an assessment of who behaved well and who did not.

The High Court has said, on 4 September, that a mere contact order gives the right of the caring parent to withhold contact from the other parent if that other parents is self-isolating or quarantining after travel.

This looks right as things stand today in applying new public health quarantine measures – but should a parent be entitled to deny contact with the other quarantining parent, to protect the child? Is that human rights compliant if the pandemic endures?

Challenges to divorce financial orders were the talk of the town in the early stages of the pandemic. But assets' prices have held up – shares and real estate in particular. So, price changes or unexpected events are likely to apply in sector specific areas – especially for company valuations. The threshold for these challenges is high for policy reasons, and we doubt there will be a rush of cases.

Of course, COVID-19 will lead to wildly fluctuating abilities to pay maintenance, again on a sector by sector basis. The property market may or may not hold up.

Divorces are taking longer. We have seen at AFP examples of client taking matters into their own hands. They have moved out with or without the children, such are the strains at home through a long divorce which the pandemic has often made longer.

Brexit – the long-term consequences for international cases

At the end of the transition period on 1 January 2021 Brexit will boot us out of the Brussels regulatory regime for family law and into forum disputes for divorce.

Say hello to expensive arguments about the appropriate forum. Some said the Brussels race to court rules were unfair: the first to issue won. It seemed so in a particular case if you were the losing party. But you had certainty.

English prenuptial agreements will still be enforceable across borders in EU member states despite Brexit. The case law remains a little confused about enforcing foreign prenuptial agreements / matrimonial regimes back into this jurisdiction.

Goodbye the Brussels bogeyman (real or perhaps imagined) which has dominated our international cases for almost twenty years.

No fault divorce 

Parliament has finally approved no fault divorce. It had been contained within legislation, but never enacted, in the Family Law Act 1996. So this was a law on the shelf for 25 years, and well overdue. It was voted in this time by a huge parliamentary majority. From late 2021, when it comes into force, there will be less pain and shame with divorce.

Some of the last 12 months' important financial cases

Well almost no space for these – but for those interested in financial and international cases like us at AFP, the following are important – Moher v Moher (no need to pinpoint exact amount of undisclosed wealth), Potanin v Potanina (Russian wife not allowed to continue financial claims after Russian divorce as she was not sufficiently connected with this jurisdiction), XW v XH (Court of Appeal says equal sharing remains as important as it has done since 2000, and special business assets, or special contribution are not valid arguments in most cases), CB v KB (approval of informal assessment of child support for people earning up to £650,000 a year using Child Maintenance Service rates), DS v HR (wider use of Hadkinson rules: non-payment of maintenance would lead to inability to defend other proceedings), D v D (wife found not to have understood the terms of a foreign prenuptial agreement and it would be given no weight), Villiers v Villiers (EU rules and related English legislation gave a wife the right to pursue maintenance claims in London if she so chose, in parallel to a Scottish divorce).