The impact of COVID-19 can be just as significant for individuals and families as it is for businesses. Many people are wondering what they should be doing to access financial support, protect their assets and ensure family life can continue uninterrupted. While there is plenty of guidance for businesses available, there is little out there to help inform individuals about their options.
You may have questions about how living arrangements for children are impacted or about how to protect and pass on your wealth, as conventional arrangements are interrupted. Our experienced teams have put together this Q&A to help you and your family understand the options and make the decisions that are right for you.
Prior to Covid 19 the Divorce Centres (Courts which deal with the administrative Divorce Process) were already overwhelmed and it was probably taking at least 9 months to get a straight forward Divorce. With Covid 19 the Divorce Centres have had to reduce staffing levels in line with national guidance. As such, these timescales have been pushed back even further. It can be quicker to use the Government’s online “Divorce Portal” but this is not suitable for all cases.
In a significant number of cases, the parties to a divorce manage to reach an agreement regarding their property, capital assets, pensions, income etc without having to make an Application to the Court to ask the Court to make a decision for them. In order to make this agreement binding, it is necessary to have it put into a document, known as a Consent Order, and for that Consent Order to be approved by a Judge. Whilst there was already a significant wait for these orders to be considered by a Judge before the Coronavirus pandemic, staff shortages and office measures have made the wait even longer. It is currently taking roughly 20 weeks from the Court receiving the Consent Order before this is even being considered by a Judge.
Given the length of time it is taking for Consent Orders to be approved, this is a very real consideration for a lot of separating couples. For example, if one of them is buying the other’s share of the family home then, in order to establish whether this is possible, they may have acquired a mortgage offer which is limited for a period of 6 months. They therefore want to get on and deal with the conveyancing process needed to transfer the ownership of the property as soon as possible.
In relation to some aspects of the agreement, yes, you can takes steps to implement the agreement before the Order has been formally approved by a Judge as long as both spouses agree to this. For example, you can sell a property or transfer it from joint names to one person’s name which is obviously useful if there is a time limited mortgage offer as mentioned above. A lump sum can be paid as can regular monthly payments (e.g. spousal maintenance). There are however a couple of points to note. One is that without a binding Order there is nothing to “enforce” if your soon-to-be ex-spouse back tracks or starts being unreasonable e.g. refusing for whatever reason to sign the papers to transfer ownership of the property. Another point worth mentioning is that, until the Order has been approved by a Judge, it is not 100% binding. Whilst it is very rare, Judges do have the discretion to refuse to grant a Consent Order if they consider, based on the information they have, it is not fair and reasonable. Whilst these issues only tend to crop up in a very small number of cases, they are still important to remember.
There is however one aspect of a Consent Order which cannot be implemented until the Order has been approved by a Judge. You cannot share a pension until the Consent Order is approved by a Judge and the Decree Absolute has been granted. These two documents are required by the pension scheme before they can begin the process of sharing the pension. Unfortunately, spouses who wish to share their pensions have no option but to wait.
It is clear that the current pandemic is going to have a lasting effect on all aspects of our economy which in turn can have an effect on financial settlements. A major aspect of this will be the effect on the property market. It is incredibly likely that we will see a downturn in property prices but by how much? It is important in a case involving property to make sure that a realistic value is apportioned to the property particularly in cases where one party seeks for the property to be transferred to them. It is less important where the property is to be sold as it will clearly sell for what someone is prepared to pay for it.
Another area of the settlement that could be affected is if there are shares involved. The stock markets have already seen a significant decline in the value of shares but will the shares decrease in value even further? Is there a family business which has been affected by the pandemic – what are the long term prospects looking like for the business? Has either party’s income been affected or, due to the pandemic, is there the potential for either of them to be made redundant?
Pensions are another part of the settlement which can also be affected. They are however more complicated and whether the value of your pension has increased or decreased will depend on the type of scheme it is.
Given the uncertainties in this area and the potential complications, it is important to take independent legal advice about your own circumstances.
Whilst it is technically possible to reopen a Consent Order, this is only in a very limited number of cases and for a very limited number of reasons. It is an incredibly difficult and risky Court Application to make.
One potential reason for reopening a Consent Order is if something happens which could be considered to be a “Barder” event. That is something which has happened following the making of the Order which was completely unforeseen and unforeseeable. Following the global financial crisis of 2008 attempts were made by various parties to try and reopen their financial Orders on the basis that the value of their assets had decreased significantly due to the financial crash. They were not successful. The Court felt that the financial crash was just part of an ordinary economic cycle.
The question is whether the Courts would feel the same way about a recession caused by a global pandemic. Is the pandemic something which is unforeseen and unforeseeable? Arguably, nobody could have foreseen this coming so the answer is possibly yes. Having said that, whether an application to reopen a settlement would be successful, or indeed be worthwhile, would turn on the individual circumstances of the case and it is therefore very important to take independent legal advice.
As you can probably imagine, the pandemic has caused the Court process to slow down completely. Different Courts are taking different approaches to dealing with Applications for Financial Remedy (when you are unable to reach a financial settlement between you so you would like the Court to look at it for you). At the start of the period of lockdown, a lot of the Courts decided to postpone all of their non urgent cases which would include the majority of the Financial Remedy applications. Some have dealt with the First Hearings in the Financial Remedy Application process as a paperwork exercise and other hearings have been conducted “remotely” by way of telephone or video conferencing. Therefore, whilst the Courts are operating in a way, due to the non urgent nature of these types of cases, they are taking a long time to be dealt with.
Given the backlog in the Court system, more and more people are turning to alternative methods to resolve their dispute including Mediation, Collaborative Law, Family Arbitration and private FDRs all of which can be done remotely. These options may therefore be attractive to a lot of separating couples as an alternative to joining the back of a very long queue of Court Applications.
Mediation is often used by separating couples to try and reach an agreement in respect of their finances but also in respect of the arrangements for any children. A lot of mediators are still operating in the current climate albeit remotely using video conferencing facilities etc.
Yes, the Government has confirmed that children under 18 are free to go between households if their parents are separated.
This does however become more complicated if the child has to isolate because they or someone in their home are displaying Covid-19 symptoms, or if one parent is considered ‘at risk’.
Parents with contact orders are being encouraged to stick to those orders as far as they can, including by finding imaginative alternatives. It may be possible, for example, to use FaceTime or other forms of remote contact if face-to-face contact is not possible.
Parents should always consider the welfare interests of their child and ideally work together to find the best solution in line with the government’s isolation guidelines.
This is a difficult situation to find yourself in. It is clear that some parents see no harm in a child returning to school whereas others do not want to risk it.
When a Judge considers a case involving children they have to look at what is in the best interests of the child and have regard to a number of important factors. Education is obviously something very important in a child’s life but so is their health and wellbeing which could potentially be at odds here. It is possible to make an Application to the Court about issues such as this however, given these unprecedented times, it is difficult to say at present what a Court would do in these circumstances. It is likely to turn on the individual circumstances of the case e.g. is the child in an “at risk” group of people, how is the school dealing with social distancing etc.
It is possible that arguments in cases such as these could be a costly exercise and, given the pressure that the Court system is under at present, it may be that if you were to make an Application in relation to this specific issue, the case may carry on for longer than the actual pandemic. As with all disputes in relation to children, it is always best to try and reach an agreement about the arrangements that should be made for them. Mediation can help in this regard and is a cheaper and less time consuming process than a Court application.
The Private Client team at Langleys are still all working albeit that we are, as much as possible, doing so remotely from home. We have been proactive in our approach to taking new instructions by utilising the technology that we have at our disposal. Initial instructions are being taken over the telephone, using video conferencing or by email. In many cases we will use a combination of these in whichever way best meets client’s needs. We have spent considerable time in the past developing Will Questionnaires to help obtain initial information from clients and this has proved invaluable in the current circumstances. We have, understandably, seen a shift in clients wanting to sign Wills at home without us being present. Our experienced team have been able to provide clients with advice on how best to do this whilst still complying with current social distancing requirements as well as how clients may wish to record the process (e.g. video) to ensure the risk of potential claims is mitigated.
A Will is an important document to ensure that the people you wish to benefit from your estate do. If you die without having made a Will, the intestacy rules apply in an arbitrary manner, particularly if you are not married or there are no children. If the intestacy rules apply to your estate then they could leave your spouse having to share your estate with relatives (e.g. brothers and sisters, nieces and nephews) whom you may never have intended to benefit.
Making a Will also allows you to express your wishes and intentions in relation to your funeral and testamentary guardians of your infant children.
Lockdown has posed practical issues in relation to Will making but our team here at Langleys have been working hard to ensure that for most people it will still be possible to put in place a Will and discuss your affairs and Inheritance Tax position even with these conditions.
To ensure we are still able to provide our clients with the services and reassurances they need, we are still taking instructions for Wills, although everything is working slightly differently due to social distancing and remote working.
Presently, we are conducting our client meetings in relation to Wills by telephone or video call and then preparing the documents based on your instructions and sending them out for signing.
For a Will to be validly signed, strict formalities must be adhered to and we cover these in the question below.
If you have any queries in relation to your Will or affairs then please contact the team.
Wills must be signed in the presence of two independent adult witnesses.
Witnesses must not be beneficiaries of your Will or the spouse or civil partner of any beneficiary in your Will. They can be your executors provided your executors do not benefit under the Will in any way.
The witnesses must:
Detailed instructions on signing will be provided with your Will and the Private Client team will be available to answer any questions that may arise.
It is the case that some clients live alone or with members of the family who will not be able to witness the Will. In this case, it may be required that you rely on neighbours who are willing to assist with the witnessing at a safe distance but in the line of sight. In doing so we remind clients to take every precaution to minimise risk to health. At present it is not possible to witness or sign a Will electronically.
A certificate provider is an essential element in the preparation of a Lasting Power of Attorney. The Certificate Provider assesses that the Donor understands the Lasting Power of Attorney and has not been placed under any pressure to make it.
There are certain requirements for a person to be able to act as a certificate provider. To be a certificate provider an individual must have known the Donor personally for a period of at least two years or be someone with relevant professional skills and expertise to assess mental capacity.
A knowledge based certificate provider must be over 18 and cannot be a family member or family member of an attorney. The certificate provider also cannot be a business partner or a paid employee of the donor. The relationship must be more than just as an acquaintance. Therefore it is possible for a family friend or even a neighbour to act as a certificate provider provided that they have had a relationship with Donor as more than an acquaintance for at least two years.
A skills based certificate provider will usually be a Solicitor specialising in Lasting Powers of Attorney, Doctor, Social Worker or independent mental capacity assessor. With the current restrictions that are in place it may be more difficult to obtain an assessment of mental capacity from a Doctor or Social Worker because of the increased pressures on their workload. Depending on your circumstances it may be possible for a Solicitor or independent mental capacity assessor to carry out the assessment either by maintaining the government’s advice on social distancing or by video call.
The legislation specifying the formalities for a Will to be valid is nearly 200 years old. Society, and technology in particular, has changed beyond recognition since the time that legislation was put in place. A consultation by the Law Commission in respect of how the law relating to Wills should be updated was undertaken in 2017 and they are currently analysing responses to develop a final policy, however, this has been placed on hold whilst they consider reforms in other areas.
It is important that the legislation is reviewed and improved as appropriate. In the current circumstances the potential benefits of relaxing the rules regarding witnessing are obvious. The most vulnerable in society, the people who may need to review their Wills most urgently, would be able to do so without being in close proximity to someone who may carry the virus. However, we should be cautious about removing the need for witnesses. Their role is not only to confirm that the Will has been signed by the testator or by someone at the testator’s direction. They also provide evidence of the circumstances in which the Will was signed should there ever be any doubts raised about the Testators capacity, their knowledge and approval of the contents of the Will or as to whether they were under any undue influence to sign the Will. These factors cannot always be determined even if the Will were to be witnessed over a video link.
You do not need to update your will to specifically mention Covid-19. Wills do not tend to mention particular causes of death but, rather, are documents to take effect on death no matter what the cause. However, people may wish to take the current circumstances as an opportunity to review their Will planning.
Circumstances can change over time and it is important that wills are reviewed regularly to ensure they still meet your requirements. An up to date, professionally drafted Will, provides reassurance that your estate will be distributed to the people that you intend it to and provides you with the opportunity to control or protect assets if required.
A ‘Lasting Power of Attorney’ is an important document that allows you to appoint somebody to make decisions on your behalf should you ether require assistance or should you lack the capacity to make those decisions in the future. You can grant Lasting Powers of Attorney in respect of decisions regarding 1) property & finances and 2) health and welfare.
If you do not put Lasting Powers of Attorney in place and you lose capacity, your loved ones may not be able to make decisions on your behalf without making an application to the Court of Protection, a process which can be lengthy and expensive.
Everybody should consider putting Lasting Powers of Attorney in place and this is particularly important in current circumstances. If you become ill it may be important to you that your loved ones can make decisions regarding your treatment and access your finances.
Not for at least three months.
From 26 March 2020 until 30 September 2020 landlords will need to give tenants three months’ notice (instead of two) before issuing court proceedings to evict them for not paying rent or for any other reason. Only after the three months’ notice period has expired can court proceedings be issued and a judge grant an eviction order if the tenant has not left the property.
This is because the Government recently brought in emergency legislation in the form of the Coronavirus Act, which provides protection for residential and business tenants who may well be having difficulty paying their rent. Many people are struggling financially due to the economic downturn caused by the COVID-19 pandemic.
The act covers most accommodation in the private and social rented sectors and applies to all grounds of eviction. The Governments’ hopes that this will give time for the lockdown restrictions currently in place to have been lifted, allowing people to return to work and resuming paying their rent.
In addition, the courts service announced that from 27 March 2020 all ongoing housing possession actions will be suspended for 90 days. This means that cases currently in the court system or any about to go into it cannot progress to the stage where someone could be evicted until July 2020 at the earliest.
Landlords with buy to let mortgages facing financial difficulties due to tenants not paying their rent should speak to their mortgage lender. Mortgage lenders have agreed to offer mortgage payment holidays of up to three months where this is needed due to Coronavirus related hardship. Where a mortgage holiday is offered the sum owed remains and the mortgage will continue to accrue interest during the payment holiday period.
In all cases, if you are a tenant and you are struggling to pay your rent, you should speak to your landlord as soon as possible to explain the situation and try to agree a resolution.