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Family law considerations for brain injury survivors

We explore how this may have an impact on family life and how those who’ve received compensation can protect their sum of money.

01 June 2022

Brain injury diagnosis

A brain injury can have a devastating and life-long impact for an injured person and their family. Depending on the type and severity of the brain injury, an injured person may have a reduced life expectancy, be reliant on others for care and may often have other symptoms.

This can include:

  • Fatigue
  • Depression
  • Irritability
  • Memory loss
  • Behavioural changes
  • Changes in personality

These personality changes can include disinhibition, impulsiveness, obsessive behaviour, mood swings, and many more.

These effects can cause immense difficulty in family relationships after a traumatic brain injury, and in severe cases can even lead to a complete relationship breakdown or divorce. Below, our family law expert John Owens explores the legal ramifications when that happens.

Relationship difficulties due to brain injury

Families of brain injury survivors often report that they’re living with “a new person” following their injury. The emotional, behavioural, physical, and cognitive effects of a brain injury will often have an impact on existing and future relationships and family dynamics. For example, the spouse or partner of a brain injury survivor will often take on the role of carer, and this can change the boundaries in their relationships after a traumatic brain injury which can result in friction, unhappiness and eventually relationship breakdown.

It isn’t just adult relationships that can be affected by a brain injury. The reaction of a child to a parent sustaining a brain injury will depend on several factors such as the child's age, the quality of the parent-child relationship prior to the brain injury and the impact the injury has had on the individual.

Changes in a parent’s personality after a brain injury will commonly result in the child or children involved feeling distant or confused about the relationship. The uninjured parent may also be concerned from a welfare perspective about the time that their injured partner spends with the children, for example, if they’ve developed anger issues, memory loss or disinhibition.

The need for early family law advice

If an injured individual’s pursuing a personal injury claim and they’ve received, or expect to receive, a significant sum of money intended as damages, it’s imperative that they seek expert family law advice. This applies whether the injured person’s married or not.

An individual who’s already received their compensation for an injury claim, and is later intending to get married, should always consider entering into a prenuptial agreement. This will protect the sum of money they received as damages- which was intended to compensate them for their injury- to meet their future care and rehabilitation needs, and to provide an income.

If the individual who received the compensation is already married, they should consider entering into a postnuptial agreement which will have the same impact as a prenup entered into prior to marriage. In every case, a detailed breakdown of the damages should be obtained, which specifies what percentage of the damages were awarded for each element of the compensation, such as re-housing, adapting a home, care needs or loss of earnings. This breakdown should be made clear in any agreements so that each party’s clear on what assets should be considered outside the matrimonial pot for division in the event of a breakdown of the marriage.

How is injury compensation handled in divorce?

Both married and unmarried individuals need to carefully consider the way in which their compensation’s managed after a personal injury claim. If the funds are to be held in a trust and managed for the individual suffering from a brain injury, then careful consideration must be given to the way in which the trust is set up, who the beneficiaries are and in what way the funds are invested for the benefit of the injured individual.

If an element of the fund’s chosen to be invested in some form of investment portfolio, and the individual’s married or in a relationship, consideration must be given to whether such investment is made in the individual’s name or in joint names with their partner.

It’s important to be aware that investing funds or purchasing property in the joint names of both parties will “intermingle” the money, meaning that should the relationship breakdown in the future it’s more difficult, if not impossible, for the injured individual to recover those funds fully from any investment made in joint names.

Because of the considerations needed regarding finances, personal injury lawyers dealing with serious injury cases often work with family law experts to consider these issues from the outset of the case, rather than after the damages have been received. Early intervention and advice on potential family law issues throughout the claims process can benefit the injured individual in the future, should they experience a relationship breakdown or divorce.

How we can help

It’s important to be aware that, during the lifetime of a serious injury case, such as for a brain injury or brain damage, family law issues can frequently arise, whether the injured individual’s married, considering marriage or unmarried.

At Slater and Gordon, our family law experts work closely alongside our specialist personal injury team to make sure that all of our clients have the legal support and advice that they need.

If you or a loved one have suffered a brain injury, whether you’re currently going through a personal injury claim or have already settled one, and you’re looking for expert family law advice, we’re here to help.

To talk to one of our family solicitors, call us today on 0330 041 5869 or contact us online today and we’ll call you.

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