Disabilities and divorce Q&A: Family Law

We understand that having a disability of any sort and not knowing what this means for the future can take a strain on relationships and be a source of stress. It poses questions about how a disability might affect financial claims in a divorce or separation or the impact of a disability when it comes to child arrangements.

Sonal Parekh is a Family solicitor at SA Law. Below she answers some of the more personal questions people often have but may be reluctant to ask when considering divorce, separating, or applying to the courts for orders in relation to children when they are affected by a form of disability.

Under the Equality Act 2010 a disability is a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on your ability to do normal daily activities.

Living with a hidden disability

Sonal was diagnosed with Inflammatory Bowel Disease (IBD) when she was 21 years old. She has grappled with a “hidden disability” ever since and has had to overcome the stresses, both personally and professionally attached to dealing with the disability on a day-to-day basis but also over coming social prejudices and unconscious bias attached to having a hidden disability.

Having worked in Family law for a number of years, she has advised clients who also identify as being disabled, with her first-hand knowledge and experience of living with a form of disability, Sonal’s approach to a client’s situation is empathetic to their particular needs and she is able to provide a safe space for clients to ask the more personal questions and obtain honest answers.

Disabilities: divorce/separation and finances:

Are there any reasonable adjustments that can be made to ensure people with disabilities (mental or physical) are comfortable and able to attend and engage in the court process?

A: If you are a disabled person involved in a court hearing, have to attend a meeting in the court buildings, or need assistance with completing court forms, you have the right to request reasonable adjustments to do this. The court is able to assist in the following ways:

1. Providing forms in large print,
2. Providing guidance in audio or easy read,
3. Making sure hearing enhancement systems are available in every court and tribunal building,
4. Providing a separate waiting area,
5. Step-free access with ramps and lifts,
6. Disabled parking at court, and
7.  Accessible toilets.

If you need help or support in the court room, this can be discussed with the Judge before the hearing. Judges are committed to making sure everyone can give their best evidence and everyone has a fair hearing.

I am considering divorcing my partner, however due to my disability, I am not able to work full-time hours and can only work in a role which does not include much physical activity. Can I claim a larger percentage on the division of our financial assets?

A: This is known as a “capital provision”. The usual starting point in dividing financial assets in a divorce is 50:50 of the matrimonial assets. However the court will also consider the Section 25(2) factors of the Matrimonial Causes Act 1973 (MCA) when determining what financial order should be made. These include:

1. The income, earnings capacity, property and other financial resources which the husband and wife has or are likely to have or could reasonably be expected to have in the foreseeable future; and
2. The financial needs, obligations and responsibilities of the husband and wife; and
3. The standard of living enjoyed by the family during the marriage ; and
4. The husband and wife’s age and the length of the marriage including any period of pre-marriage cohabitation; and
5. Any physical or mental disability of either the husband or wife; and
6. Any contributions made by either the husband or wife to the welfare of the family; and
7. The conduct of either the husband or wife to the extent that it is relevant to the financial court application. The family court will only rarely decide that conduct is of relevance to the amount of the financial award;
8. The value of any benefit that either the husband or wife will lose because of the divorce, for example pension provision.

These factors will need to be considered in the context of the individual and their financial circumstances for example if one spouse needs more capital in order to purchase a bungalow or suitable apartment or to purchase a mobility vehicle. In such cases, the court will consider that the disabled spouse may require more than half of the available capital to meet their needs, both immediate and longer-term.

Could my health impact my financial settlement? What happens if my health fluctuates or changes over time?

A: When the Court considers the division of finances, the overarching objective is to achieve a fair outcome for both parties in respect of their needs. Whilst there are a number of factors which are taken into consideration, one of these is “any physical or mental disability of either of the parties” along with either party’s earning capacity. The Court will not only be concerned with current earning capacity, but that of future earning capacity of both parties, which may of course be impacted by their health.

The impact of one party’s disability will depend on: (i) how serious it is; (ii) the impact it is likely to have on their current and future financial position; and (iii) how health considerations are balanced against the overall case.

Conversely however, it is worth noting that a disability or serious health condition can also go against a party’s claim to the matrimonial assets. Situations like these occurs if one party is in receipt of disability payment benefits, which are considerable consideration compared to other assets in the case. Sadly, where one party’s health effects their life expectancy, this will further impact the outcome of a financial division.

I have been suffering from depression and mental health issues for some time, how are these issues addressed in divorce and financial proceedings:

A: According to Mind, a leading charity in mental health, 1 in 4 people will experience a mental health issue of some kind each year with 1 in 6 people reporting experiencing a common mental health problem, such as anxiety or depression each week. You are most certainly not alone.

In many ways, there is a link between depression and the breakdown of a relationship. The relationship either breaks downs because one party is suffering from depression, or other mental illnesses or, depression/mental illness is brought on by the breakdown of the relationship.

There are also important legal considerations the Court will review regarding mental capacity in more severe cases of depression and mental illness. Mental capacity will need to be considered before embarking on divorce and separation. The Mental Capacity Act 2005 houses the relevant provisions in relation to mental capacity. The bar to being deemed as “without capacity” to act in proceedings is very high. This is a specific area of the law and specialist legal advice should be sought.

As mentioned in the answer to question 2 above, the Court must give consideration to the Section 25 factors of the MCA in order to determine the extent to which a mental health issue will impact the overall award. We must not forget, the at the Court’s paramount consideration will be the welfare welcome of any children of the family, regardless of whether depression or mental illness is a factor in the case.

If we take a detailed look at the factors, it is clear that depression/mental illness could have a significant impact on the overall division of finances.

1. Section 25(2)(e) states that consideration must be given to “any physical or mental disability of either of the parties to the marriage”. It therefore follows that a party’s mental illness may be a relevant factor that the Court will need to consider when exercising its discretion. If it can be shown that the illness or condition directly impacts a party’s needs, if they are unable to work for example, the Court will need to consider whether this should influence the overall needs of a party and the financial orders made. There is also the possibility that the party will need to factor in continued medical costs related to their illness, such as therapeutic costs, which are reasonable costs to be included in the party’s income needs budget.
2. Section 25 (2)(a) Illness of any sort can affect a person’s income and earning capacity, as discussed above, and in some cases, can affect a person’s ability to work or seek employment, even impacting the type of work they can do. All these factors might then limit mortgage raising mortgage capacity, resulting in one party requiring an increased capital sum in order to re-house themselves.
3. Section 25 (2)(b) considers the housing needs of both parties.

It is not possible to generalise on the impact of one party’s depression or mental illness on the overall financial award as this will vary case by case. Each award will be reflective of the parties circumstances and the financial situation of the family as a whole.

I have been diagnosed as disabled since separating/ divorcing my ex-partner. Can I seek to change the financial provisions of my financial settlement?

A: After a Consent Order has been sealed by the Court, (this order encompasses the division of the parties finances), it is almost always final. The part that can be changed is if there is ongoing maintenance. Once a Consent Order has been made, the financial ties between divorcing couples are broken, with neither of them being able to bring any future financial claims against the other.

Whilst there is no governing legislation in this regard, case law has set the precedent on when the Court may allow a financial settlement to be re-opened if something later happens that alters the principle on which the original order was made. The following four key factors need to be established and proved before the Court will consider re-opening a Consent Order:

1. That the new events invalidated the basis or fundamental assumption upon which the order was made;
2. The new events had occurred within a relatively short time of the order: whilst no precise limit was set down, it was ’extremely unlikely’ that it could be as much as a year and in most cases will be ‘no more than a few months’;
3. The application for leave to appeal out of time should be made reasonably promptly;
4. The grant of leave to appeal should not prejudice third parties who have acquired interests in property in good faith for valuable consideration.

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

A: Becoming a carer for a spouse can change your relationship with that person, and sometimes in a negative way. You can apply for a divorce if your husband or wife ‘lacks mental capacity’ and cannot agree to a divorce or take part in the divorce case. Your husband or wife will need someone to make decisions for them during the divorce, this person is called a ‘litigation friend’. It can be a family member, close friend or someone else who can represent them. If there is nobody the Official Solicitor can be asked to represent them.

When making financial orders, the Court will take into account the care needs of the other spouse, it may result in that spouse receiving a greater share of the capital in order that their housing needs are sufficiently met.

I have been diagnosed with a disability recently which means I am no longer able to work and earn as much. I have become more dependent on my spouse, and this has led to the breakdown of our marriage. My spouse does not agree with the diagnoses and believes that I can still work to my maximum capacity. Where does this leave me should a divorce be initiated?

A: In situations where there is no agreement between spouses on whether or not one of them has a medical condition, the prognosis for that condition, the current and future impact on the spouse’s ability to work or their professional care needs, then a medical report can be ordered by a Judge within financial court proceedings. The person with the disability cannot be forced to undergo a medical examination. However, by not doing so, there is no independent medical evidence of their condition and its impact on their daily lives and earning capacity for the Court to consider.

In certain circumstances, it may be appropriate to obtain a specialist report from an occupational therapist which will highlight the services required to assist the spouse and the costs of obtaining this extra help. The report would assist the Judge in being able to decide that the non-disabled spouse’s income or capital needs are a lot lower than the spouse with a disability. If mental health is a concern an independent psychiatric report may be obtained.

I have been the higher earner in our marriage since we started co-habiting (3 years prior to getting married). I have recently been diagnosed with a disability which means that I am no longer able to continue working in my current role. I will be working less and will therefore have a significant pay cut. My spouse has issued divorce proceedings as I am no longer able to provide the same standard of living we enjoyed previously, we have 2 children together, both under 18 years of age. Where do I stand with a financial settlement for myself and our children?

A: As a married couple, on divorce it is possible for either spouse to claim ongoing spousal maintenance. In a situation where a husband or wife suffers from a disability which affects their earning capacity or increases their need for additional income, a claim for Spousal Maintenance can therefore be made. When assessing Maintenance claims, the court will consider the disability, but will also consider the ability of the non-disabled spouse’s ability to pay maintenance (and child support if relevant) as well as being able to meet their own needs. Other factors will include the length of the marriage and how long the disabled spouse will require maintenance. The court will decide what is a fair outcome after considering all the relevant factors.

Thank you for reading this article

We hope this article has answered some questions you may have when considering your options on divorce, separation and financial issues whilst faced with life changing disabilities.

Should you have any questions which have not been answered in the above article, please contact Sonal Parekh at SA Law by email: sonal.parekh@salaw.com