Family

Divorce considerations and disability

We explore how divorce, and other family matters such as children and finances, are considered when one spouse has a disability.

27 June 2022

Hands of wife, husband signing decree of divorce, dissolution, canceling marriage, legal separation documents, filing divorce papers or premarital agreement prepared by lawyer. Wedding ring.

The decision to bring a marriage to an end is a difficult decision for anyone. This can be made even more difficult when one or both parties are suffering from an illness or disability which affects their day-to-day life and behaviour. Below, Rubecca Rahman, a paralegal in our expert family law team, discusses the impact that disability can have on the divorce process, and what rights to care and financial support each party has.

What happens in divorce when one spouse is the primary carer of the other?

Many people find it very difficult making the decision to and then taking steps to end a marriage, however, the divorce process can be much more complicated when one or both parties suffer from a disability, and there are various issues that need to be considered regarding divorce and disability.

When one spouse has filled the role of primary carer for their partner throughout the marriage, this can be a full-time responsibility leaving them unable to work. In the event of divorce, many carers are left feeling worried about losing the money they receive for this role and being left with financial uncertainty.

However, under the Matrimonial Causes Act 1973, any contributions made by either party to the welfare of the family, and the value of any benefit that’ll be lost because of the divorce, will be taken into consideration in a divorce. Spousal support and disability can be complex, so it’s always best to reach out to a divorce specialist as soon as possible.

What happens if they don’t have the mental capacity to decide on the divorce?

Another issue that can further complicate the issue of divorce and disability is when one party doesn’t hold the mental capacity to agree to the divorce, or to be involved in the divorce process. This is particularly an issue where one party suffers from a disability that causes problems with memory, expression, and language, such as dementia. Neurodegenerative diseases such as these include Alzheimer’s, Parkinson’s and many more.

Dementia can greatly affect an individual and their loved ones. Figures suggest that around 850,000 people live with the disease, but that figure’s expected to rise to over the coming years. This is one in every 14 of the population aged 65 years and over and in 2040 there is predicted to be over 1.5 million people with dementia in the UK.

There are things that need to be considered about divorce and dementia, such as contemplating whether a person might lack the mental capacity to make decisions about the process. When this is the case, an individual may require further assistance from a litigation friend.

The court must consider whether the individual truly understands what’s happening and whether they’re able to make informed decisions about their marriage and finances. It’ll also be assessed whether the other party can remain in the marriage, and their needs and wants will also be considered.

What happens if they live in their partners home?

Matrimonial home rights provide a spouse with the legal right to live in your family home, even if it’s registered to your spouse and they want you to leave. This rule is in place to protect people, especially those who are vulnerable, from being forced out of their home by their spouse.

When the financial settlement upon divorce is reached, arrangements will usually be made so that each party’s housing needs are met. However, if you have nowhere else to go, you may even have the right to remain in the matrimonial home after your divorce is finalised.

This doesn’t often happen 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.

Are there any special considerations on finances?

With all divorces, there’s an assumption of an equal split of finances as a starting point, however, a disability can have a huge impact on the divorce proceedings and financial settlement.

Several factors are considered when it comes to negotiating the separation of assets, including any mental or physical disabilities of either party. The extent to which this might affect the outcome depends on the nature and severity of the disability, and the amount of long-term support that’s needed because of the disability.

If, as mentioned previously, one spouse has acted as the primary carer for the disabled party, then alternative provisions must be considered financially- whether this be help from another family member or paid professional help.

What happens to the children?

As is the case with all divorce proceedings, the needs and welfare of children always comes first. A disability could impact the ability of one parent to take care of the children on their own, which could prevent normal shared child arrangements.

However, if both parties can come to a sensible arrangement about where the children will live once you are divorced, and the courts agree that the needs and welfare of children will be met under these circumstances, then this is the best choice.

Where it isn't possible to reach agreement between the parents, before applying to the family court for a Child Arrangement Order, you must first attend a Mediation Information Assessment Meeting (MIAM). Once this avenue has been tried and if it is unsuccessful, you can then seek a Child Arrangement Order in the family Court.

When it comes to divorce and disability, every situation’s unique, and it’s very important that you get the right expert advice. When you work with our family law and disability specialists, advice is given on a case-by-case basis, tailored to your needs.

Simply get in touch with our experienced team of family law solicitors on 0330 041 5869 or contact us via our online form or web chat.

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