Disability can add a layer of complexity to financial settlements and divorce proceedings, as courts must balance fairness with the unique and often urgent needs of a disabled party.
If you or your spouse has a disability, this can have an impact on the outcome of your divorce and financial proceedings. There are some basic principles to understand when you are trying to reach a financial agreement with your ex-partner, and you have a disability.
Can a disability help one party achieve more in financial proceedings?
The starting point for a division of assets in a marriage of a significant length is a 50/50 split. However, there can be reasons to depart from equality including, but not limited to the needs of the parties.
Whilst there are several factors which are taken into consideration by the court, Section 25(2)(e) of the Matrimonial Causes Act states that consideration must be given to any “any physical or mental disability of either of the parties”. It may be necessary to agree a departure of equality in one person’s favour, if a 50/50 division will not meet their needs. For example, if the cost of accessible housing, disability aids, therapeutic services, transport or carers could not be sufficiently funded by 50% of the pot.
One party’s needs may also be greater due to lower earning capacity which could be a reason for departure from equality. For example, if one person has more limited employment options, or is only able to work part-time, has not had the opportunity to gain qualifications which would lead to a higher salary, or may not be able to engage in paid employment at all. This could mean to be able to re-house sufficiently, the individual with the lower earning capacity could need more of the joint assets to secure housing.
It is important to note that if there are more than enough joint assets to meet both parties’ needs, then there may be no need for a departure from equality because of a disability. Any benefits received will also need to be factored in.
Can my disability work against me in financial proceedings?
Your disability may work against you in financial proceedings if the other party argues that your life expectancy is reduced. This will only be applicable in a minority of cases. If the other party successfully argues that your life expectancy is reduced, they may be able to present that you need less assets to provide for your future.
Is a mental disability treated the same as a physical disability?
Mental disabilities are accounted for in much the same way as physically disabilities unless you lack capacity in legal proceedings. If you have a mental disability which means you lack capacity, then you may need to appoint a litigation friend. This is someone who can make decisions which are in your best interests during proceedings and can be a friend, relative or professional.
Will I have to provide evidence of my disability?
Most evidence required in financial proceedings is financial in nature. You may be asked to provide your contract of employment, your payslips, and an estimate of your borrowing capacity from accountant mortgage advisor. If your disability is disputed, you will also be asked to provide medical evidence like medical records or a letter from a doctor.
Will I encounter disability discrimination in the process?
You may be concerned about experiencing discrimination in proceedings but a large proportion of people getting divorced are living with a mental or physical illness or a disability. Don’t be shy when giving details of the way your disability affects your life and your needs. Solicitors and court officials have a duty of confidentiality, and you will do yourself a disservice if you are not transparent about your circumstances.
If you have any further enquiries regarding disabilities and the imapct it has on divorce and financial proceedings, please feel free to contact our Family Finance team and we would be happy to help.