Covid-19 is testing the very fabric of the Family Law Scotland Act

Roger Mackenzie, Partner, Wright, Johnston & Mackenzie

COVID-19 is having a huge impact, with its effects being felt across a variety of sectors, including family law.

Lockdown restrictions have sparked concerns regarding child contact arrangements. Many parents and carers whose children are the subject of court orders relating to parental responsibilities and rights, such as contact or residence, wonder how to adhere to orders safely. Court orders still apply and despite an initially confused message, the Government said arrangements should, wherever possible, continue as normal. However, it is expected parents or guardians will exercise common sense, act safely and adhere to Government advice and guidelines.

Where parents agree that arrangements set out in a court order should be temporarily varied, they are free to do so. Guidance from The Lord President advises each parent to record such agreements in a note, email or text. If a child doesn’t spend time with the one parent as set out in the order, the courts will expect alternative arrangements to establish and maintain regular contact by use of videoconferencing or telephone.

Unfortunately, it seems the aspect of the guidance allowing one parent to vary arrangements could be open to abuse. Furthermore, for a parent deprived of contact with a child there is, in effect, no remedy available, as the courts are closed to all but the most essential business.

Efforts are being made to unlock the court backlog and the Scottish Courts and Tribunal Service heralded the Kezia Dugdale defamation appeal as Scotland’s first virtual hearing. It’s hard to imagine this was the most urgent case, but the move to offer virtual hearings is positive.

Divorce proceedings are also being impacted. Some couples about to go their separate ways are being forced to live together, as property transactions, an integral part of most divorce agreements, aren’t going ahead.

The Family Law Scotland Act 1985 has stood the test of time, but this crisis is testing its very fabric. Significant changes in the value of property will bring into sharp focus the way we deal with divorce proceedings. When determining fair sharing of assets on divorce, Scots Law looks at the value of assets at the date of separation, so we will be working on the basis of properties, pensions and business interests valued several months ago. COVID-19 means many valuations have changed dramatically and people may seek to renege on agreements based on historic valuations. New boundaries will be drawn in relation to special circumstances arguments.

People’s circumstances are changing considerably. Many have lost their jobs or are unable to work. With more people facing financial hardship, resources arguments will come to the fore during divorce proceedings. We may see a situation where based on assets on the date of separation, one partner is due to pay their spouse a capital sum, but might be unable to meet the obligation. Similarly, changes to household incomes could result in child and spousal maintenance reviews and disputes.

This is an exceedingly difficult time. There is a school of thought that we shouldn’t be resolving cases while the financial outlook is so uncertain. However, many people in the middle of proceedings will simply want to move on. Some will embrace a new perspective which might see past enmities put aside to focus on what really matters.

Roger Mackenzie, Partner, Wright, Johnston & Mackenzie

Covid-19 is testing the very fabric of the Family Law Scotland Act – Roger Mackenzie