Divorce and mental health problems

Divorce|Relationships|Wellness & Self Help|October 10th 2019

Plenty is written today about the devasting effect of divorce on people’s mental health, and quite rightly so.  The breakdown of a long-term relationship is well-known as one of the most stressful things you will go through, second only to the loss of a loved one. All too frequently as part of the journey depression and anxiety tag along for the ride.

But mental illness is not confined to be an after-effect of a divorce. We frequently advise clients who are wishing to divorce from a partner who is struggling with mental illness, someone struggling to manage their divorce because of their own mental illness or a family breaking down due to a child with mental health issues.

Legal advice on divorce and mental health problems

This article is not written to make a judgement call on whether people should separate due to an illness, be it physical or mental. You cannot walk in someone else’s shoes or truly understand their situation. Instead, it is designed to offer practical, legal advice on the complexities that can arise in a case of divorce and mental health problems.

“Mental health problems can affect anyone,” said Rachel Roberts, Managing Partner at the Stowe Family Law office in Leeds. “I once acted for a high-flying career woman who had been unhappy in her marriage for some time and ended up neglecting her business. She fell into debt, her business was about to collapse and eventually, her marriage ended. What followed was a severe episode of depression.”

“In the beginning, she gave regular instructions and the case continued however as her depression worsened contact became infrequent. She frequently missed court deadlines leading to adjournments which had to be agreed to be the other party because of her health at the time.”

In this situation, the main consideration is whether the party with mental health concerns has the capacity to provide instructions and to agree to a divorce or financial settlement.  Under English and Welsh law, a person’s mental capacity is judged according to the decision that needs to be made. For example, can they understand the relevant information relating to a financial settlement to make an informed decision?”

Assessing mental capacity

If there are doubts over someone’s capacity, a doctor must undertake an assessment to determine whether they can make the specific decisions they face.

“In this case” Rachel explains,” the capacity to give instructions kept changing with the client’s psychiatrist deeming her not to have capacity, and then being fit to give instructions once more and then on a later occasion, deemed unfit again.”

In this situation, if the doctor decides that a party lacks capacity, it is possible to progress the case if a representative, a ‘litigation friend’, is appointed to act on their behalf and make decisions in their best interests. This can be a friend or relative if there is no conflict of interest. If there is no one suitable, the Official Solicitor can be appointed to represent the unwell party but this is not necessarily a straightforward task, and consideration still has to be given to other factors, such as how the case will be funded.

“Thankfully”, Rachel says “her health eventually recovered, and she was able to give instructions. The case concluded with her full involvement. However, the case had taken much longer than expected, costs had mounted, and the husband sought orders against the wife so that he could recover his costs. This was successfully opposed because clearly, the wife could not be blamed for her mental health.”

Struggling with divorce and mental health problems

Trying to balance a divorce with existing mental health issues, whether it’s you or your spouse who is struggling with the disease, is a complex and emotional time. If you need help, please do get in touch with Rachel or one of our lawyers to look at your options.

This piece was published at an earlier date and has since been updated in honour of #worldmentalhealthday2019

Rachel is managing partner of the Stowe Family Law Leeds office. She specialises in all aspects of family law but has particular expertise in dealing with the financial aspects of marriage breakdown and with cases involving significant and complex assets.

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Comments(2)

  1. Katrina Murphy says:

    I have Narcolepsy with Cataplexy which is lifelong condition and disabling. I set up a pension in 2000 I work in local Government. I knew I needed to have something to support my future as I know I wont be fit to work to retirement age. My husband refused to take out a pension at the time self employed. We married in 2008. In 2016 we split after he had an affair. We are divorcing he is dictating that he wants half of my pension because he needs a double knee operation. He has no pension or other asset I’m aware of. He says if I want to keep my pension then he will take the house. The house we both own & I’m still living in. No young children our daughter is moving out soon. He says the house will go on the market in April. I feel so aggrieved I loose my marriage which is fine but then to have half my pension taken after working hard with a disability that affects me chronically every single day and not have my home just seems so wrong. It’s so unfair I believe I should have half the house like him because I need to then set up a home again which questions at 46 without the finances or work lifespan how I’m expected to do this. I’m do worried about the future and not having a home and the security of my pension being there to financially support me. My guess is my pension may be worth more than the house? I wouldn’t mind I am not wealthy and wouldn’t be wealthy even if I was handed the pension tomorrow! what I have is what I have worked hard for I sacrificed whilst working studying and raising our family to put a little away because I was diagnosed at 16yrs with this chronic condition and knew it would have to be there to support me at the end of my working career. It is rare for people with the severity of my condition to work. I’ve been advised to freeze my work pension and set up another one and start paying into that one right away before the divorce starts then he wont be able to touch it? Is this right? I am sceptical even though it should be. The damage he caused to my mental health the effects on my condition and my work resulting in being off work poorly it’s so unfair. We both pay half the mortgage and he is all set up in a new home bought by his partner( yet registered at his mums address). My other question is; Could my disability alter the outcome? would it come into consideration? He even took the family car. I dont drive so reliance on funding taxis to try to get about. My life changed overnight. And sadly I dont have the finances to.pay for top solicitors or divorce. I get by on what I earn but without high level of disposable income and no family to rely on.I dont know what I am supposed to do about this I am worried sick. Stress majorly affects my disability too unfortunately. I so appreciate your time to answer the questions I understand you can only go off the snippet of info I have provided and only hope to get the correct advice.

    • Kate Nestor says:

      Sorry to hear about your situation. I have passed your details to our Client Care Team who will be able to put you in touch with a lawyer who can help. Regards,

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