If your relationship has broken down and you, or your spouse, are about to commence divorce proceedings, there may be mental health issues which need to be taken into account.
If your solicitor has knowledge and experience of the impact of mental health in divorce proceedings this is likely to help you during the process.
I have set out some points which it may be helpful to consider:-
Mental capacity
There are some people who lack capacity to issue a divorce petition or represent themselves in divorce and financial proceedings. If a solicitor is instructed, it is for that solicitor to consider whether or not the person giving instructions has the mental capacity to do so. If the solicitor feels the person can understand the proceedings and the advice given and provide instructions to the solicitor they can represent that person.
If mental capacity is in doubt, it has to be specifically considered in the context of what is required. For example, someone may have mental capacity to take certain steps in legal proceedings, but not others. They may, for example, be able to understand the terms of a financial settlement, but not necessarily cope with a contested court hearing if finances could not be settled by consent.
We do not yet have “no fault divorce”. The grounds to proceed straight away will therefore need to be adultery or unreasonable behaviour. It is not always realised that if someone’s behaviour is attributable to their mental health, it does still provide grounds for divorce even though, medically, they cannot help their behaviour. These issues may change during the course of proceedings and an experienced solicitor will be alert to this throughout.
If either solicitor does query whether there is mental capacity a psychiatric report can be obtained from an independent expert to address this. The expert would be specifically asked whether the person has capacity to understand and take the steps that will arise during the divorce proceedings and the resolution of finance. A detailed letter will be prepared by the solicitors explaining what the report needs to cover.
It is also likely to mean that care has to be taken as to how the proceedings are conducted and the timing. Sometimes, just before a court hearing, both parties may be making attempts to settle finances, and this can lead to a lot of communications and draft documents in a short space of time. It would not be appropriate that the vulnerable person is put under time pressure and the solicitor will need to take this into account. If there is insufficient time it is preferable in that case to agree with the solicitors for the other spouse to request an adjournment from the court so those negotiations can take place at a pace appropriate for the more vulnerable person.
There will also need to be different considerations. For example, I have represented a wife who did not have mental capacity to conduct the proceedings. Her sister acted for her and was appointed by the court as what is known as her “next friend”. Her vulnerability had to be taken into account in the negotiated settlement. In that case, the wife’s parents had left a property to her. They were aware of her mental health difficulties. However, her difficulty was such that she was living in residential care. Although the husband potentially had a claim to the house as it had been the matrimonial home, this was not something I could advise agreeing to because it was possible that the wife might come out of residential care (if her mental health improved) and it was important to preserve a home for her to return to which had been the specific intention of her parents. I explained the situation to the husband, and he accepted the marital home remaining with the wife. I was satisfied that the financial settlement met the wife’s needs and protected her and I was able to submit a Consent Order to the court but on submitting it, I fully explained the circumstances and the thinking behind the terms of the order. The Judge could then consider the order that the court was being asked to make in the context of a vulnerable person.
Where a person does lack mental capacity I have represented them, through the Official Solicitor, but again it is crucial to consider throughout if their capacity has changed and if they can then give instructions direct.
Alcohol dependecy and drug addiction
Sadly, in many cases, alcohol dependency has been a primary factor in the breakdown of the marriage. It is important to take this into consideration as it is likely to affect that person’s ability to earn an income and it may be appropriate for settlement to be on the basis of that person having sufficient to buy a small property mortgage free to give them protected accommodation.
Related issues may also need to be taken into account. For example, on one occasion I represented a wife whose husband had a cocaine addiction. He had lost several jobs and was currently not working. If he was able to address his difficulties and obtain employment he had a high earning capacity of around £150,000 per annum. However, it was uncertain whether or not he would be able to hold down a job. It was important to consider and advise and discuss fully with the wife the alternatives of a settlement which included maintenance from the husband (which would be vulnerable to his earning capacity) or take a larger amount of capital which would give her a sum to use if he was unable to provide money for maintenance for the children but would be less than she would receive as maintenance if he was able to earn £150k per year.
Sometimes, the other party does not want to accept that their difficulties may mean they are not going to work again. It is important to carefully consider this and not negotiate on their behalf on the basis that they will obtain employment if there is significant doubt about this. Sometimes it can even be very significant anxiety and panic attacks (without any formal diagnosis). On one occasion I represented a wife and she was optimistic about obtaining employment and, indeed, her husband was very keen for her to do so, as this significantly affected the sum he would have to pay in maintenance for her living costs. On her behalf, I was able to negotiate a settlement which gave her sufficient money to manage financially if she did not obtain employment and, if she did, it would be an additional sum which would give her a higher standard of living. She was not left in a situation with her matrimonial settlement being dependent on her obtaining a job when she had not worked for many years.
If you, or your former partner has mental health or addiction difficulties it is worth at the beginning discussing with your solicitor what experience they have in these areas.