Deciding to divorce a spouse is never easy, but this can be made even more difficult when one of you suffers from an illness or disability. This article discusses the impact that disability can have on the divorce process, and the further considerations this can impose.
Deciding to divorce a spouse is never easy, but this can be made even more difficult when one of you suffers from an illness or disability. This article discusses the impact that disability can have on the divorce process, and the further considerations this can impose.
If you have concerns about a family law matter and you feel you need legal advice, contact specialist family solicitor Mark Heptinstall of Slater Heelis Solicitors. He is recognised as a ‘Leading Individual’ in The Legal 500 and ranked in Chambers UK, and is described as having “the amazing ability to bring calm into troubled waters”.
What happens if one spouse is the primary carer?
The divorce process can be complicated when one spouse has filled the role of primary carer throughout the marriage. This is often a full-time responsibility, leaving them unable to work outside the home. Many carers are left feeling concerned about losing money they receive for this role and being left with financial uncertainty.
The Matrimonial Causes Act 1973 takes into account contributions made by both parties to the welfare of the family, whether this is monetary or delivering unpaid care. With all divorces, there is a starting point of an equal split; however, a disability can have an enormous impact on the divorce proceedings and financial settlement.
Several factors are considered when it comes to negotiating the division of matrimonial assets, including any mental or physical disabilities of either party. The extent to which this might affect the outcome depends on the severity and nature of the illness or disability, alongside the level of long-term support required because of the disability. If one party has acted as the other’s primary carer, then alternative financial provisions must be considered, whether this is help from a family member or a paid professional.
The first thing a carer should do when contemplating divorce is to assess the amount of assistance they provide to their spouse. Consider all the things you do on a daily basis, such as driving them to appointments, helping them shower, personal care, cooking, and running errands. Make a list of the tasks they could perform by themselves as well as the ones they would be incapable of completing without the assistance of another person. This will help you evaluate whether your spouse will need additional services when you are no longer there. In order to continue their daily care, you may need to add professional services to maintain your spouse’s standard of living.
Can a disability help a spouse achieve a greater financial settlement?
As stated above, the starting point is equality for a marriage of significant length, although there can be reasons to depart from this position, including, but not limited to, the needs of the parties. Someone with a disability may have greater financial needs, for example, because of the cost of accessible housing, disability aids, transport, and carers.
On the other hand, if one spouse has been caring for their disabled partner full-time, this is likely to have limited their earning capacity and employment options. They may only have been able to work outside the home part-time, or not had the opportunity to gain qualifications which would have led to a higher salary or promotion. Whatever the circumstances, it is important to bear in mind that if there are more than enough joint assets to meet both party’s needs, then the disabled spouse will not necessarily be entitled to a greater share because of it.
There are circumstances when a person’s disability may work against them if the other party argues their spouse’s life expectancy is reduced. This will only apply in a minority of cases, but if successfully argued, a spouse may be able to claim fewer assets are needed to provide for the disabled spouse’s future.
What happens if I am living in my disabled spouse’s home?
Matrimonial home rights can provide a spouse with the legal right to live in the family home, even if it’s registered to your spouse and they want you to leave. This protects a spouse, particularly those who are vulnerable, from being forced out of the family home.
When the financial settlement is reached, arrangements will usually be made so that each party’s housing needs are met. However, if you have nowhere else to go and cannot afford to move out, in certain circumstances, you may even have the right to remain in the matrimonial home after the divorce is finalised. It should be noted that this is rare, but could be more likely in instances of divorce and disability, for example, where the property has been modified to assist with the care of the disabled person.
What happens if a spouse doesn’t have the mental capacity to divorce?
When one party is considered not to hold the mental capacity to agree to a divorce or be involved in the divorce process, it can further complicate matters. This is an issue when one party suffers from a disability that causes problems with memory, expression, and language, such as dementia, and neurodegenerative diseases such as Alzheimer’s, or Parkinson’s.
There are things that need to be considered about divorce and dementia, such as assessing whether the person has the mental capacity to make decisions surrounding the process. When this is the case, the person affected may need further assistance from a litigation friend.
The court must consider whether the individual truly understands what is happening and whether they are able to make informed decisions about their marriage and finances. It will also look at the individual’s needs and wants.
What happens to the children?
As with any divorce, the needs and welfare of any children always come first. A disability could affect the ability of one parent to take care of the children on their own, which could prevent normal child arrangements. However, if a sensible arrangement can be brokered between the parties, setting out where the children will live following the divorce, and the court agrees the needs and welfare of the children are met, then this is likely to be ordered.
Where an agreement cannot be reached, before applying to the court for a child arrangements order, the applicant must first attend a Mediation Information Assessment Meeting (MIAM). Once this avenue has been explored, and unsuccessful, an application can then be made.
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