There has been plenty of research into the impact of divorce on the mental health of the separating parties but, if one of the parties has a mental illness, this can also have an impact on the divorce process.
For a sizeable minority of our clients, mental health plays a very significant role in the divorce process – either as a result of their own mental illness, that of their spouse, or even that of the children involved. Divorce is a difficult and emotionally-charged issue at the best of times but, in the context of mental health concerns, it is imperative that matters are dealt with sensitively and professionally.
The first consideration is whether the party with the mental health concerns has capacity to agree to a divorce or financial settlement. If it is thought that this may be an issue, the party in question should be asked to undergo a capacity assessment by a medical professional. The issue of capacity is fairly nuanced – a party can lack capacity to make certain decisions, over a certain period, but can simultaneously have capacity to make other decisions at other times. Ultimately, it is important to have medical input and not to assume one way or another.
It is still possible to progress a divorce and financial settlement when one party is found to lack capacity, but a representative needs to be appointed to act on their behalf. This can be a relatively complex process, so advice should be sought as early as possible.
It is important that the issue is dealt with at the beginning of proceedings as, if it is subsequently found that a party lacks capacity, the decisions made to date can be called into question.
It is important that any mental health diagnoses are raised in the context of financial proceedings, particularly if they are likely to have an impact on a party’s earning capacity. If, for example, it is clear that a party is unlikely to be able to work full-time (or work at all), in either the short-term or the long-term, it is imperative that this is made clear, as it may well have an impact on the overall financial settlement.
Medical evidence of any diagnoses should be obtained, together with details of any treatment and the impact that the diagnosis is likely to have on the party’s day to day life in both the short- and long-term.
We recognise that, if a client’s spouse does not have legal representation, a spouse’s mental illness can mean that we need to adjust how and when we communicate with them. There are various measures we can put in place to ensure that the process is as smooth as possible, and we would be happy to discuss this with you.
Equally, we recognise that, for clients with mental health issues, the idea of Court can cause heightened anxiety and stress. We understand that this is likely to colour your approach to your case and are happy to discuss this with you as your matter progresses.
Harriet Wigmore is a solicitor in the family team in Exeter. Our family law team has been ranked as the best in Devon and Cornwall by Chambers and The Legal 500, the two leading independent legal guides. If you would like to discuss children and finance upon divorce or any other family law issue Harriet can be contacted on 01392 210700, by email email@example.com