The Positives and Negatives of Family Law in Lockdown

Simon Fisher, Partner in the family law team at Gardner Leader LLP solicitors, offers his thoughts to Lawyer Monthly on the changes he expects COVID-19 to bring to family law.

Divorce Rates

Law firms like Gardner Leader LLP have had to swiftly adapt to a new normal way of working, operating remotely to support clients using progressive technology like video conferencing. Gardner Leader also introduced a secure and confidential app where clients can communication with solicitors remotely.

Despite firms having to close their offices to visitors in line with the government guidance, divorce solicitors up and down the country – including Baroness Shackleton of Belgravia – predicted a surge in divorce enquiries caused by the pressures of self-imposed confinement.

This surge appears to have occurred sooner than imagined. Searches for ‘I want a divorce’ remain popular, with some firms claiming to see a 154% increase in Google searches and a 40% increase in divorce enquiries immediately after lockdown.

Wealthy individuals using the opportunity of a lowered asset base to get a more advantageous divorce before the economy bounces back, and the pressure of quarantine and financial uncertainty, are among the reasons given by solicitors for enquiries increasing during this period.

Searches for ‘I want a divorce’ remain popular, with some firms claiming to see a 154% increase in Google searches and a 40% increase in divorce enquiries immediately after lockdown.

These figures suggest that for those in a struggling relationship – where there’s no way back – lockdown has not restricted couples from taking the first steps in the divorce process. Furthermore, as lockdown restrictions begin to ease, we too have seen enquiries at Gardner Leader increase by 48% as the UK follows suit with other parts of the world such as Shenzhen, China. With the pandemic ebbing, in April around 3,500 divorces were reported in Shenzhen, accounting for around 84% of marriage registrations, compared to a previously yearly average of around 30%.

As the UK continues to ease out of lockdown, UK law firms are bracing for another wave in divorce enquiries.

Increase in domestic violence

 Where lockdown has had its most damaging impact is to those in abusive relationships. According to the WHO, reports of domestic violence in Europe rose by 60% in April compared to the same month last year, some attributed to the stress and anxiety of lockdown.

There are mechanisms to break lockdown restrictions for victims. The courts are open for urgent non molestation and occupation order applications (albeit via video or telephone) but as the data from the WHO shows, COVID-19 is sadly still causing incidents to increase.

Individuals can often find themselves trapped in struggling relationships but without an ability to move on. In such a difficult time, associated problems such as mental health can often come to the forefront. However, being confined with limited prospect of a resolution at this stage could have a deep effect on parties both now and in the future. The full effect is unknown but the warning signs are there.

Alternative Dispute Resolution (ADR)

One positive outcome from lockdown is that it has forced parties to consider alternative options to the traditional court process to resolve their dispute. Rather than waiting for a hearing that might not take place, parties can use ADR methods such as Arbitration, Collaborative Law or private FDRs; options that were available before COVID-19 but were often wrongly treated as secondary options by lawyers and clients alike. This can no longer be the case and the inevitable use of these options is only a positive to keep disputes out of the courts and to reduce costs.

Court hearings

Meanwhile, court hearings have also been modernised, with the courts and judges providing guidance as to the digital filing of bundles, and the provision for future remote hearings including some precedent orders by High Court Judge of England and Wales, Mr Justice Mostyn. In fact, during the initial weeks of lockdown, video and telephone hearings including Family Dispute Resolution hearings were still taking place.

The trouble is, the swift move by some courts to commendably adapt to a new remote way of life has left a slight confused and inconsistent family court system, with various family court locations around the UK adopting contrasting approaches. Some hearings are taking place on paper, some by telephone or video and some proceedings are just generally being adjourned. This depends on the location, staffing and availability of the Judiciary, among other factors.

Often, hearings taking place are organised by the court the day before or morning of the hearing by different remote means. This causes uncertainty for family law practitioners and clients alike, particularly as family lawyers cannot give a clear answer if the hearing will proceed or not. This likely won’t get any better in the future once lockdown is lifted; the courts will likely be backlogged with hearings, with lawyers wondering how or when these matters will be listed.

Often, hearings taking place are organised by the court the day before or morning of the hearing by different remote means.

Then there’s the digitalisation of courts. While recent steps were underway with digitalisation of online divorce and financial orders, the family courts have often been reluctant to use remote hearings – despite being used successfully in civil hearings for many years.

The COVID-19 lockdown has bought the use of remote hearings to the forefront. Not all hearings have taken place as scheduled, and some like final hearings need parties in attendance. However, there have been a number of successful video and remote hearings showing that this is something that could be implemented to save legal and court costs and time.

Let’s hope this is the case, so at least we can say one key positive change has emerged from the disruption and turmoil inflicted on the family legal system by COVID-19.