How to secure a divorce financial settlement during Covid-19

Posted onApril 15, 2020

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With normal life in suspension most of us are just focussed on getting through Covid-19 and the government lockdown. However, if you are separated or getting divorced and either at the start or part way through the process of trying to reach a financial settlement with your husband , wife or civil partner you may be despairing thinking that you will make no progress whilst the country is in lockdown. Family law solicitors say that isn’t the case as during the coronavirus outbreak not only are the family courts working but you have the option to resolve your financial settlement through mediation, arbitration or a private financial dispute resolution.

Online divorce and financial settlement solicitors

As online family law solicitors the expert team of specialist family lawyers at OTS Solicitors can advise on how to best reach a financial settlement during the Covid 19 outbreak. For financial settlement or family law advice call us on 0203 959 9123 or complete our online enquiry form to arrange a Skype, video conference or telephone appointment.

Is the family court closed?

The family court certainly isn’t closed for either existing or new court applications although the court is prioritising certain types of family law cases (such as injunction law applications or urgent children law applications).

When it comes to financial applications on divorce, the lead judge of the financial remedies court, Mr Justice Mostyn, has issued Covid-19 guidance for financial court users which is summarised below:

First financial court appointments should be carried out, wherever possible, using the “accelerated” paper-only procedure in the FRC protocol but the protocol doesn’t need to be followed strictly and judges should routinely accept consent orders dealing with first appointments
Those involved in financial proceedings should try to have a private financial dispute resolution hearing (this is the second financial court hearing that is used to try and negotiate a financial settlement or give directions on things like updated valuations of property and other assets that are needed for a final hearing). The private financial dispute resolution hearing should be carried out remotely
Other financial hearings conducted by the court should be done either by Skype or by telephone
Physical court hearings should only take place where this is absolutely unavoidable
The physical lodging and handling of court documents should be avoided and paperwork should be filed by email
Financial remedy court judges should try to do as much work as they possibly can from home.

Therefore, whilst it isn’t business as usual at the financial remedies court, financial applications are still being issued and dealt with despite Covid-19.

What is a private financial dispute resolution hearing?

In his coronavirus financial remedy court guidance the lead judge of the financial remedies court, Mr Justice Mostyn, recommended the use of private financial dispute resolution hearings to reach a financial settlement. That has led to questions being asked of family law solicitors about what is a financial dispute resolution hearing and what is the difference if one is held ‘’privately’’?

A financial dispute resolution hearing is usually the second court hearing in a financial application. The first court hearing (referred to by the court and family lawyers as the first appointment hearing) is meant to:

Look at what the issues in the financial application are. For example, is there a dispute over what should happen to the family home, and pension or a family business or an argument over spousal maintenance and future earnings capacity
Consider what expert evidence and valuations may be needed. For example, the family home may need to be valued by a surveyor, the family business may require valuation by an accountant and the pension funds by an actuary. A medical report may be needed if one spouse says that they need spousal maintenance for life as they are medically unfit for work
Consider what directions should be given. For example, a statement may need to be filed to set out the case of a husband or wife if pre-marriage or special contributions are asserted by one and disputed by the other spouse.

Once all the necessary evidence and expert reports are available a typical financial application is listed for a financial dispute resolution hearing before a family law judge. At that hearing the judge will try and help the spouses reach a financial settlement by offering guidance as to the likely range of court orders that could be made if either the husband or wife chose to go to a contested final hearing, when a judge would hear evidence and reach a decision. When giving that guidance the family law judge considers thee relevant family case law and the statutory guidance to judges on how to decide financial applications that is contained in section 25 of The Matrimonial Causes Act 1973.

At a financial dispute resolution hearing a judge can't impose a decision on a husband and wife. All the judge can do is offer guidance and help facilitate a financial settlement. That guidance is based on their many years of experience or knowledge of family law and is intended to be a neutral assessment of the likely outcome of the financial application if there was a contested final hearing.

If agreement is reached at the financial dispute resolution hearing then the court can be asked to make a financial court order. The financial court order is binding and can't be altered if you change your mind and regret reaching an agreement. If you can't reach a financial agreement at the financial dispute resolution hearing then the judge will list the financial application for a contested final hearing.

During the Covid-19 outbreak courts are suggesting that private financial dispute resolution hearings should take place, outside of the court setting. That means you can still progress a financial settlement as if you reach an agreement at the private financial dispute resolution hearing the order can then be sent to a family judge for approval by email. If you can't reach an agreement the court can be asked to list the financial application for a contested court hearing. Some contested court hearings are taking place via Skype as some courts have the facilities to enable remote hearings to be conducted fairly and as thoroughly as if you and your spouse were sat in your local family court room.

Family lawyers are urging husband and wife's not to make financial settlement decisions based purely on Covid-19 concerns or worries about not being able to go to court during lockdown and therefore feeling pressurised into reaching a financial settlement. There is no need to feel under undue pressure as expert legal advice is available as well as a range of court and non-court based financial resolution options.

Family mediation

As an alternative to starting financial court proceedings you could use family mediation to help you reach a financial settlement. A family lawyer will help support you through the family mediation process by:

Advising on the financial disclosure needed in light of your personal and financial circumstances and those of your husband, wife or civil partner. For example, financial disclosure may need to be more extensive if you own a family business or if you have substantial assets
Offering advice on whether family mediation is suitable for you. It may not be if there are domestic violence concerns and you feel intimidated (although ways to make you feel supported during video conference mediation sessions can be explored) or if your husband or wife is refusing to provide the necessary financial disclosure or is using family mediation as a delaying tactic
Making recommendations on what additional information or expert evidence is necessary, such as an actuarial report on the true value of a pension or an accountant’s report on the tax implications of the sale of a family business or an investment portfolio so the net value of the asset can be taken into account. Getting these reports can make the difference between whether or not you feel confident to reach a financial settlement in family mediation, knowing that you have the necessary information and legal support to make an informed decision
Advising on the law relating to financial settlements and the range of court orders that would likely be made if either of you started financial court proceedings. This advice is crucial as you know whether you are likely to do ‘’better, worse or about the same’’ if either of you were to start financial proceedings
If you reach agreement in mediation converting your mediated agreement into a binding financial court order so that you can implement the order, for example the sale or transfer of a family home or the putting into place of a pension sharing order
If you don’t reach agreement in family mediation advising you about commencing financial court proceedings and providing robust representation in the financial court proceedings.

Despite Covid-19 family mediation sessions can still take place as many family mediators are used to conducting mediation sessions remotely by video conference or by Skype with husband , wife and family mediator all at different locations. Sometimes a mediation session by video conference can actually be easier than a face to face mediation meeting with a separated spouse or civil partner present.

Family arbitration

During the coronavirus outbreak the option of using family arbitration to reach a financial settlement is gaining in popularity with separating or divorced couples trying to resolves their finances. Arbitration is like using a private judge to reach a financial settlement.

Unlike in mediation, a decision made by an arbitrator in family arbitration is legally binding and enforceable. A family lawyer can represent you in the arbitration process and hearings and ensure that the arbitrator’s ruling is converted in to a financial court order.

Arbitration is an ideal financial settlement solution when a husband and wife or civil partners want:

Speed – there is no need to wait for court hearings. Most family arbitrators have a lot more availability and flexibility than a family law judge
Privacy – there is no need to go to court and arbitration hearings can either take place remotely by video conferencing or, after travel restrictions are lifted, in the privacy of a solicitor’s office
Flexibility – as the arbitrator can decide on what steps are needed to be undertaken before the arbitration hearing and does not have to adhere to the same court rules on the need for first appointment or financial dispute resolution hearings.

One of the primary advantages of family arbitration is its ability to adapt to the needs of those who are asking for what is, in effect, a private judge to determine their financial settlement. The arbitrator will use the same family law principles (contained in section 25 of the Matrimonial Causes Act 1973) as a family judge to reach his or her decision but the arbitrator is able to be more flexible and speedy.

Your financial settlement options

Whether it is issuing a financial application at court, using family mediation or family arbitration or simply solicitor negotiations it is still possible to reach a financial settlement despite the highly unusual times we find ourselves in. Therefore, family law solicitors say that if you want to seize control of one aspect of your lives then sorting out your financial settlement maybe one way to use your time during the Covid-19 lockdown.

Online divorce and financial settlement solicitors

The specialist family lawyers at OTS Solicitors have lots of experience of working remotely using the latest secure technology to secure financial settlements by negotiation, financial court proceedings, mediation or arbitration. If you need to sort out a financial settlement or need help with a separation or divorce or advice on any other aspect of family law call OTS Solicitors on 0203 959 9123 or complete our online enquiry form. We will set up a video conference, Skype or telephone appointment for you with a friendly and experienced family law solicitor.