COVID-19: What happens to your family home if you are separating or divorcing during the current pandemic?

If you are in the process of separating or divorcing or you are considering separating during the current public health crisis, there are several important considerations to think about. The Government has issued detailed guidance about moving home during the coronavirus outbreak, which can be found here, but, we have set out some common questions and answers below.

My marriage is in difficulty and I would like to move out. Am I allowed to?

The Government has advised that anyone with coronavirus symptoms, self-isolating or being shielded should not move house at present. Home buyers or renters who do not fall into these categories who wish to move should delay moving to a new house while emergency measures are in place, unless the move is critical. What constitutes a critical move has not been explained so this will come down to subjective views. We think, for example, a move would be critical if someone is suffering domestic violence in their present home and the move would enable them to escape that situation. Irrespective of the current public health crisis, it may not be sensible to move out before an agreement has been reached about how your family home and any other assets will be dealt with so please consider contacting us for further advice before deciding to move.

I am already in the process of selling our family home and moving to another following our divorce. Can we proceed?

Moves to vacant properties are permitted. The Government has advised that there is no need to pull out of transactions, for properties which are occupied, but parties to a chain should work together to agree delaying completion until such time as the emergency measures have been lifted. You should not exchange contracts until you have specific clauses in place to manage the risks presented by the virus. If you have already exchanged contracts, you should be able to obtain a three-month extension to your mortgage offer. If you have exchanged and are unable to agree to delay completion, you are permitted to move subject to the following:

• the properties involved are not being occupied by cases or suspected cases of coronavirus
• none of the occupants are self-isolating
• everyone complies with the social-distancing rules.

If you have not accepted an offer on your property, bear in mind that estate agents are not permitted to enter your home, nor are prospective buyers. It may be possible for estate agents to organise virtual tours. Surveyors are not permitted to enter the home of someone who is self-isolating or displaying coronavirus symptoms or being shielded.

I have a final financial order made by the Court as part of my divorce, which requires me to dispose of a property over the coming months. What should I do?

If you are unable to comply with the Court’s order and Government advice in its emergency measures during the pandemic, you will need to make an application to Court to extend the deadline for complying with its order. We can assist with this. If your former spouse/partner agrees, the order can be made by consent, which will minimise the cost.

I am in the process of negotiating a settlement with my spouse/partner based on a valuation we have already received for our family home. Should I continue or put negotiations on hold for now?

This will depend on your individual circumstances and attitude to risk. Given the uncertainty about what will happen to the housing market, any valuation you have obtained may be inaccurate or may soon become inaccurate. It would be risky to reach a settlement based on such a valuation because it is unlikely that you would be able to revisit and change the settlement if the valuation turns out to be incorrect. The alternative is to put the financial issues on hold until such time as you can gather accurate information. In the meantime, you may need to come to an interim agreement with your spouse or partner to ensure your needs are met.

I have recently obtained a Final Financial Order in my divorce, but my circumstances have since drastically changed because of coronavirus. Can I apply to review and change the terms of the Order?

Generally, applications to vary a Final Financial Order are not permitted. There are very few exceptions, such as orders for spousal maintenance or a lump sum paid in instalments. However, if something unforeseen happens, which invalidates the basis on which the Final Financial Order was made, then an application to set aside the Order can be made. Such applications are rare and only succeed in exceptional circumstances.

The current public health crisis has led to all sorts of unforeseen consequences. Losing a former spouse to COVID-19 or the collapse of a business because of the Government’s stay at home measures may be a valid basis for applying to set aside a Final Financial Order made before these events happened. The merits of an application will be very case specific so obtaining specialist legal advice is essential.

If you need further advice, please contact any member of our family team, who are here to help.