The COVID-19 pandemic is going to have long lasting implications on the economy and, as such, one of the questions that my clients are repeatedly asking me is whether they should change their course of action during the pandemic.
Should they separate but not divorce, commence divorce proceedings or simply wait until things are more certain? What this could mean for their own financial circumstances?
Firstly, when parties talk about staying together the important thing I would always stress is that you should not stay with a partner, irrespective of the financial implications, if you feel you or any children are at risk. Emergency protective measures can still be put in place during the pandemic. If you feel threatened, or feel that you are at risk if you remain living with a partner, you should seek urgent advice, either from the police or a solicitor. You can find out more here.
With that said, here’s an overview of the potential impact the coronavirus pandemic may have upon the main matrimonial assets and finances, both now and in the future.
Income
One of the points the court will consider when looking at the division of the matrimonial finances is income:
‘the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire.’
Although people may have seen a reduction in their income, either through redundancy or furloughing, the important point to note from the above is that the court will look at the resources the parties are ‘likely to have in the foreseeable future.’ This means even if a party has a reduced or no income, I suspect the court are likely to look at what someone was earning before the pandemic as an indicator as to what their potential income will be in the future.
I therefore suspect the court will still look at any maintenance payments to balance any inequality in the income of the parties, but may delay the implementation of this. However, it is important to note that following the Supreme Court Judgement in Mills V Mills in 2018 [2018] UKSC 38, this indicates the court will look at trying to work towards parties being financially independent.
Pensions
Arguably one of the biggest impacts the pandemic may have is upon pension assets.
It is a known fact that the pandemic has led to considerable falls in the stock market and it is expected these will continue to be volatile for some time, particularly as pension assets can include investments in overseas assets. Therefore, even once the UK economy has stabilised, the value of a pension may still fluctuate depending on international circumstances.
Parties are able to draw down a tax free lump sum from their pensions from the age of 55, but you should seek independent financial advice on whether this is the best option for you.
Depending upon the assets of the marriage, for some parties it would be better to see a pension share but, for others, a liquid capital asset (such as a larger share of the former matrimonial home or properties) may be a better option.
It is also important to consider that where a pension is likely to fluctuate in value, consideration may need to be given as to whether any pension share should be for a percentage of the entire pension asset (meaning it could go up or down) or for a fixed figure (in which case you would be protected for any decrease in value, but would not benefit from an increase).
Where there are considerable or complex pension assets, consideration should be given to instructing an actuary to undertake a report on pension incomes and equalisation.
Properties
The property market has been largely halted during the lockdown, meaning that property values have neither increased nor fallen. However, with the announcement that property viewings could take place again under strict conditions from 13th May and with ‘non-essential’ business being allowed to open from 1st June, it is still too early to see how the property market is going to be impacted.
In the majority of divorces, the main asset is the matrimonial home and the value and equity of this can be hugely important in meeting the party’s ongoing housing needs.
Early indications have suggested a large uptake in new instructions and, in the week following the Government’s announcement regarding the housing market, there was an 88% increase in buyer demand. This could be considered an increase in work from May, or a reflection as to how low the market fell in March 2020. It is expected property prices will fall following the COVID-19 pandemic with April figures from Rightmove suggesting a fall of 0.2% during April 2020 compared to an increase in 2.1% from the same period in 2019.
Early indications would suggest that those looking at selling property may wish to delay this, with some experts suggesting property prices could fall by as much as 7%. The key is likely to be ensuring any property valuations are as up-to-date as possible, but whilst also considering that age old adage, ‘the property is only worth what someone is willing to pay for it.’
Should I settle now or wait?
If you are negotiating and yet to reach a financial settlement, then you may wish to consider delaying negotiations, but this will depend upon the assets of the marriage.
If discussions started before the COVID-19 pandemic, then it is important to ensure up-to-date valuations are obtained to ensure negotiations are taking place with accurate figures and therefore taking into consideration any impact the current pandemic may have on their values.
Solicitors, mediators and arbitrators are continuing to undertake remote meetings and hearings, with courts also accepting new applications for divorce and financial proceedings online.
Should you wish to proceed and take action now, then you are still able to.
Conclusion
It is still relatively unknown how the courts may apply matters. There are yet to be any reported cases presented before the court in order to assess what impact, if any, the global pandemic has had upon the finances of parties. However, I expect we are likely to see this over the next 12 months.
The important thing to keep in mind is that the future is always uncertain, and never more so than under the current global conditions. However, seeking legal advice will allow you to navigate your way through the best options for your own personal circumstances and be informed each step of the way.
