The COVID-19 pandemic has raised family law issues we have never previously considered, and we have had to learn to adapt, just as the rest of the world has in various ways.
For people who have been in the midst of trying to resolve a property settlement when the effects of the pandemic struck, their carefully prepared cases have had to be completely rethought. This covers so many aspects and has raised so many questions to consider. Just a small handful of the questions we have faced over the past couple of months are listed below. For each question, the answer very much depends on the specific situation of the people involved and so we cannot give a definitive answer, but we have dealt with some of the issues to consider.
Are the previous valuations still valid or not? Should we be getting new valuations, or waiting this out, or relying on our previous valuations?
Generally, our advice is that there should be consistency. That is, if there are to be new valuations, then this should be across the board. But this could be a difficult, and expensive exercise. Our advice will also be dependent on the type of assets held and how they are to be distributed. For example, if the general plan is to sell all residential real estate, then the negative effects of the pandemic on the markets may be similarly experienced. But this might not be the case if the types of real estate items are vastly different.
The question of business valuations is potentially a very tricky area at this time, and a lot will depend on the type of business.
If one person has dropped out of employment to take on the homeschooling duties, will this have any effect on the property settlement?
Undoubtedly, school closures and the requirement for homeschooling has been a huge burden for many parents. For some, especially those with a number of children, or with children with special needs, this has required their full-time effort. There is possibly an argument in relation to contribution weighting if one parent has borne the sole responsibility for this homeschooling. Plus if one parent has left their work to take on the full-time homeschooling role, and if this will have a longer-term impact on their income earning capacity, there is possibly an argument for a greater adjustment to that person (section 75(2) or 90SF(3) of the Family Law Act 19875).
Can we make the operative time for the split retrospective?
The Court can do this based on authoritative case law, but it may be problematic for the trustee of the superannuation fund. Plus this then ties in with the issue of valuations, and at what point in time the values (across the board) are to be taken.
Will our assessment of your adjustment factors (section 75(2) or 90SF(3)) change given a change of employment status for one or both people?
The income of a person is a relevant factor to consider. The pandemic has turned many livelihoods on their head, and at this stage, it is too early to be able to predict how many jobs will bounce back (or not). For example, those in the aviation industry may hope to be getting back to work but realistically (particularly for those who were assigned to long haul) that may not occur for well over a year at least, and then likely only at a much-reduced level. The person’s current employment and ongoing prospects will be a relevant factor.
Should we consider going to arbitration?
Absolutely yes this should be considered! The Courts have suffered significant delay in hearing cases, especially cases about property settlement, over recent years. The Court has been very proactive in trying to deal as best as possible with the pandemic, and this will likely have a flow-on effect on further delays in all of the cases awaiting a Judge for a trial/final hearing. Arbitration is often a very effective (time and expense-wise) means of resolving a property settlement case, or at least parts of it. This pandemic makes arbitration even more of a serious consideration to address.
There is much about which to be anxious and concerned during this COVID-19 pandemic, and for those of you trying to get to resolution of your family law property settlement case, these concerns will be magnified many times over.
At Sarah Bevan Family Lawyers we are lucky to have a collegiate and dedicated team, who have adapted to our new lives with speed and commitment. At our daily staff (Zoom) meetings, we brainstorm all of the new issues coming our way.
In my 20 years of practice, I have never experienced such a concentration of new issues I have never before addressed.
This has been very professionally challenging for our lawyers, but they have relished the challenge and flourished from it, which means all of our clients reap the benefit.
So no matter what your family law issue is, you can feel comforted knowing that whether it is a new or “old” problem, we can help you with it and try to get you to a resolution of your case as efficiently as possible.