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The Covid-19 pandemic has challenged a court system already stretched beyond means. The huge delays that have plagued the family courts—along with the civil, business and criminal factions—have frustrated families and their legal representation.

The delays can’t be seen in isolation, as they’ve had a knock-on impact on the emotional, psychological and economic wellbeing of a family. People’s lives have been put on hold, unable to move on from a relationship breakdown and divide their assets fairly. It’s caused more suffering for children who are stuck between fighting parents, who may have exploited social distancing guidance to withhold contact. Getting the courts to deal with this in a timely manner has been near-on impossible, worsening agonising situations.

Some family lawyers have encouraged other forms of dispute resolution to circumvent these delays, including mediation, and have persuaded wealthier clients to engage with private judges to settle their divorce. But these options aren’t always available for each client and for couples divorcing across borders during the pandemic, different countries’ social distancing rules and regulations have impacted how these usually proceed. Coupled with court delays in the UK, this made it even harder on families. And combined with Brexit and the new laws around how international couples divorce, this has made divorce proceedings much less predictable, and ultimately more challenging for lawyers and their clients.

The UK and European approaches compared

However, despite the court delays, England and Wales, when compared to other jurisdictions, has dealt superbly in adapting to the online legal environment. Suffice to say, the pandemic dramatically improved the technology capability of our courts, allowing remote hearings without too many major issues.

The guidance issued by the President of the Family Division in ‘The Road Ahead’ in June 2020 still remains and it is clear that it helped to improve the efficiency of the courts in dealing with family cases. The Financial Remedies Court pilot project, completed this year and now made permanent, has greatly improved the functioning of family cases—a majority of hearings are remote, electronic bundles are used across the board and consent orders are assessed online. This has greatly benefitted all divorcing couples, especially ex-partners living across borders. Previously, parties had to conduct hearings face-to-face and taking of instructions would have been very difficult, if the party could not attend but their lawyer did. For international couples who have business or assets in this jurisdiction, and both choose to divorce here, the process is now quite predictable and it’s possible to estimate timescales, despite being long, unless the other side chooses to drag their feet.

But this wasn’t the same situation for some of our European neighbours. Court delays in the family courts were a problem in Romania and Poland before the pandemic too, impacting divorce proceedings launched there by separating couples who lived across Eastern Europe and the UK.

The Polish justice system was on hold for most of last year—responses could take months—and only now is there a remote hearing system. Despite the Romanian courts introducing an online platform for lawyers to enable easier filling and access to updates, they still don’t allow remote hearings (there are strict rules as to how hearings must be conducted in-person). This has detrimentally impacted couples divorcing cross-borders and arguably obstructed proceedings.

Particular difficulties lie for a partner whose spouse files for divorce in another jurisdiction. Lawyers here can dispute which jurisdiction the divorce must be held in, but with huge delays in responses and long court delays in other European courts, it means it’s a long and taxing wait for both parties. This can also mitigate any benefits of issuing a divorce abroad for a party.

Brexit

Brexit has had positive and negative impacts on the divorce process. A change of law from the beginning of 2021 amended how divorce petitions were submitted, particularly impacting international couples. The grounds for jurisdiction have changed, but this has had benefits for those wishing to launch their divorce in this jurisdiction—now individuals only need to be habitually resident on the day divorce proceedings are issued (under EU law, a client had to be habitually resident in England and Wales for three months beforehand).

However, the enforcement of divorces across Europe is still in uncertain waters. Divorces in EU states were automatically recognised under EU law. Now enforcement relies upon the national laws of the country the parties wish to have their divorce agreement recognised in.

Final thoughts

Family lawyers will need to increasingly engage with their international legal network to ensure the best possible outcomes for their clients. The family courts will need to continually modernise and innovate in order to protect divorcing spouses from long delays. In time, clarification will hopefully come on the enforcement of divorces post-Brexit. These solutions will help support and guard couples’ livelihoods and assets when separating across the UK and Europe, despite the current challenges.