This is a complex area of law usually, and particularly now that we are in very uncertain economic times.
A Financial Order is usually ‘cast in stone’ in terms of the division of capital assets between parties on divorce. What can be varied is any Order for maintenance. This is capable of being varied up or down, depending on the change in circumstances between the date of the original Order and the date of the application for variation.
It is much more difficult to change any capital Order, and it is very unusual for a Court to grant any such application.
In the current circumstances, it is thought that there may be a very small window of opportunity where an application to change a capital Order may be successful, based on the fact that the Coronavirus Pandemic and consequent Lockdown can be viewed as a ‘black swan’ event. This is a unique event that could not be foreseen and has a significant impact on the original Order. What is important is the exceptionality aspect in all of this, as the law likes certainty and our Courts will not easily set aside capital Orders.
It would be much easier to vary an existing maintenance Order either upwards or downwards, depending on the circumstances. You can imagine that an Order that is based on a certain level of income becomes unfair, and sometimes impossible to comply with, in circumstances where the payer of the maintenance has either had a significant reduction in their income, or lost their job as a result of what is going on in the world at the moment.
Looking at the situation conversely, a person in receipt of a level of maintenance may have agreed to that level on the basis that they earn something themselves. If their own income stream has dried up then they should be able to apply to the Court for an increase in the maintenance that they receive, if the payer’s situation is not affected by the current circumstances.
In other Family Law cases which are making their way through the Court process and the parties are in the process of obtaining valuations for their different assets may be impacted. Business interests, particularly in the hospitality and travel business, will likely be significantly affected, and valuations can become unreliable during this period.
You need to discuss with your solicitor whether it is advisable to take steps to adjourn matters and what other steps can be taken to protect your position.
Should you wish to speak to Louise Barretto Partner and Head of the Family Law Team at Bishop and Sewell, I am offering half-an-hour consultation slots each Thursday afternoon between 2.00pm and 5.00pm at a fixed cost of £120 (inclusive of VAT).
The above is accurate as at 21 April 2020. The information above may be subject to change during these ever-changing times.
The content of this note should not be considered legal advice and each matter should be considered on a case by case basis.