Divorcing my partner with a mental illness

There can be many challenges when divorcing a spouse who suffers from a mental illness, including those of capacity that may need to be addressed during the divorce process. Here we look at all aspects of the mechanics of divorcing someone who lacks capacity, and discuss the extra challenges of divorcing a partner with a mental illness.

If you are considering divorce and are concerned that you may require legal advice to understand your options, contact specialist family law solicitor Joanne Major. Joanne is the founder of her specialist family law firm and has spent her 25-year legal career specialising in family and matrimonial cases.

What constitutes mental illness?

Mental illness is a very broad term and encompasses an array of disorders. The following are the most commonly suffered:

  • Depression
  • Anxiety and panic attacks
  • Bipolar disorder
  • Borderline personality disorder
  • Dissociative disorders
  • Drug & alcohol addiction
  • Narcissistic personality disorder
  • Paranoid personality disorder
  • Post-traumatic stress disorder
  • Schizophrenia

Each condition has its own set of unique circumstances, challenges, and considerations.

Can I get divorced if my spouse is mentally ill?

Most people who are suffering from a mental health condition can engage in divorce proceedings, hold down employment, parent their children, and manage their personal affairs. However, if their illness is such that they are seriously unwell and cannot take part in the divorce process, you can still get divorced. The decision as to whether a party can take part in divorce proceedings is made by a medical professional and court after an assessment of capacity.

How is mental capacity assessed?

Mental capacity is assessment by determining whether someone has an impairment of mind, and they cannot make specific decisions when they are required to. The Mental Capacity Act 2005 states that an individual is unable to make a decision if they cannot:

  • Understand the information relevant to the decision
  • Retain that information
  • Weigh up or use that information as part of the process of making a decision

Can I still get divorced if my spouse lacks mental capacity to deal with it?

The relevant provisions can be found in the Mental Capacity Act. The bar to being considered as lacking mental capacity is extremely high, but you can still obtain a divorce, even where your spouse is unable to agree. In these cases, someone will need to make decisions for your spouse during the divorce. This can be a close friend, family member or someone else who acts as their ‘litigation friend’.

If there is no one suitable who can act as a litigation friend, you can apply to the court to appoint one. The Official Solicitor may agree to represent your spouse where there is no one else who can do this. This is known as a ‘litigation friend of last resort’.

Will the court consider mental illness as a relevant factor when looking at a financial settlement?

The court will look at several factors when determining a financial settlement and these are contained in section 25 of the Matrimonial Causes Act 1973. The extent to which mental illness could potentially affect the overall award will hinge on the crossover between their illness and the other factors within section 25.

Consideration must be given to any physical or mental illness, so it therefore follows one party’s mental illness may be relevant, particularly if their condition has had a direct impact on their financial needs. For example, if they are unable to work or meet their own needs. A connection can also be made between mental illness and earning capacity, as this can have a real effect on someone’s ability to seek work or retain employment. This could result in the mentally ill party requiring a larger share of the matrimonial assets or an increased capital sum in order to re-house themselves appropriately.

Could my ex claim their existing mental health has been made worse by the divorce and they should have a greater share of the assets?

If someone claims their worsening mental health is a direct consequence of being aggravated by the stress and anxiety of divorce proceedings, their spouse may be able to argue that any financial needs should be discounted. This is because their condition, to its present degree, could be viewed as temporary, as it is likely to improve once the proceedings are finalised.

Ultimately, the impact of one party’s mental health condition has on the overall financial settlement cannot be precisely quantified as no two sufferers cases are the same. The impact will depend upon the specific circumstances of the individuals and the financial situation of the family as a whole.


How can I reach a financial settlement when my spouse refuses to cooperate because of their mental health?

With legal matters, it is always sensible to try to reach an agreement without going to court. Not only does it save time and money, but also reduces stress and anxiety. But when someone refuses to engage in the process, reaching a financial settlement may only be possible by beginning court proceedings. If a spouse lacks the mental capacity to take part in the financial proceedings, their interests will be protected by the court, who will appoint someone to act in their best interests.

What are the challenges of divorcing someone with a mental health illness?

The challenges surrounding divorcing someone who is mentally unwell are difficult because it can be attached to feelings of guilt and worry that you have exacerbated your spouse’s condition. Guilt might be felt by the divorcing spouse because they know how much harder it is going to be for their ex afterwards. They may also feel guilty for not helping their spouse or not knowing how to handle their symptoms and associated issues. Feelings of guilt can also arise from not wanting to deal with the situation any longer and giving up on a spouse because their condition has taken its toll on their own wellbeing.

They may also be worried for their spouse’s safety and wonder if the divorce process has intensified their feelings and worsened their illness. If you are genuinely concerned for your spouse’s welfare and believe a support system needs to be put in place, it might be wise to seek help, particularly if they are threatening to harm themselves in some way.

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