Under the law in England and Wales, you can divorce a spouse who has a chronic physical or mental illness. If your spouse lacks mental capacity and cannot agree to a divorce or take part in the divorce process, you can submit a sole divorce application (as opposed to a joint divorce application) under the no-fault divorce process. Depending on your spouse’s health condition, the divorce settlement and child arrangements you reach may be different to a typical no-fault divorce. This is because their illness may reduce their earning capacity and increase their financial needs. For example, they may not be able to work, or they may require more spousal maintenance due to their illness.
Divorcing someone who lacks mental capacity
From a legal perspective, your spouse may lack mental capacity and be unable to make important decisions for themselves (such as to divorce), if there is evidence of:
- Brain injury or stroke
- Mental illness (e.g. Alzheimer’s disease or dementia), or
- Severe learning disabilities
A person may also lack mental capacity if they cannot remember information for long enough to make a decision, weigh up the options and make a choice, or communicate their decision in any way.
If your spouse lacks mental capacity, you can still get divorced, but they may need a ‘litigation friend’ who can help them to make decisions throughout the divorce process. A litigation friend can be a family member, close friend or someone else who is able and willing to represent them.
Impacts of chronic illness on divorce settlement
Your spouse’s chronic illness may impact your divorce financial settlement in a number of ways, as follows:
- Your spouse may be unable to work due to their chronic illness. In this case, you may be required to pay them spousal maintenance following your divorce.
- Your spouse may need to retire early due to their ill health, which may alter how your pension (or pensions) are shared. For example, if your spouse has a share of your pension, it may need to start paying out earlier, reducing the amount you receive.
- Your spouse may become increasingly unwell as time progresses, meaning that it may be necessary to vary your spousal maintenance order.
- If your spouse receives certain benefits (e.g. disability benefits) related to their ill health, this may reduce the amount of spousal maintenance you need to pay.
- Your spouse may have a stronger case for remaining in the family home. This is especially likely to be the case if the property has already been adapted to meet their health requirements.
The above list sets out just a few ways that chronic ill-health can complicate divorce settlements. If you have a spouse with a chronic illness and you are considering getting divorced, please speak to our family law solicitors. We can explain how your spouse’s ill health may impact your divorce financial settlement and recommend the best course of action given your unique circumstances. Where possible, we will always endeavour to help you find a solution for an amicable divorce that does not involve costly and lengthy court proceedings and preserves a relationship with your ex-spouse.
Impacts of chronic illness on child arrangements
Parental chronic illness can directly impact child arrangements (i.e. where and where your spouse will spend time with your child/ren) and any child maintenance paid. With that said, it is always important to respect their feelings and to ensure that their ill health does not become an unnecessary barrier to being a parent.
Chronic illness can impact child arrangements in a number of ways. For example, your ex-spouse:
- May need additional support with childcare due to ill health
- They may not live in a setting which is suitable for children to stay overnight
- May require regular medical treatment and check-ups, which affects when they can spend time with their child
- May lack the mental capacity to look after or care for their child
If your ex-spouse has a physical or mental illness, which means they will become progressively unwell (e.g. terminal illness), it may be necessary to adapt the child arrangement over time based on changes in their declining health. This may mean that the amount of time the child can spend with their parent on a one-on-one basis reduces over time. If your ex-spouse has a chronic physical or mental illness, this may also reduce their ability to pay child maintenance.
Divorcing a spouse who is chronically ill, has a brain injury, or has had a stroke can be extremely difficult practically, emotionally, and financially. It is important to seek legal advice from a family law solicitor who can explain the implications of doing so. Please speak to a member of our team who can guide you through the process of divorce and ensure that you can reach an amicable solution to your financial divorce settlement, spousal maintenance, child maintenance, and child arrangements.
