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 my disability help me 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. Your solicitor may argue for a departure from equality in your favour if a 50/50 division will not meet your needs. If you have a disability, you may have greater financial needs for example because of the cost of accessible housing, disability aids, transport and carers.
Your needs may also be greater than your ex-partner’s because you have a lower earning capacity. For example, you may have more limited employment options, you may only be able to work part-time, you may not have had the opportunity to gain qualifications which would lead to a higher salary, or you may not be able to engage in paid employment at all. If your ex-partner’s earning capacity is higher than yours then your solicitor may be able argue that you should retain a greater proportion of the joint assets.
You may also have a lower borrowing capacity than your ex-partner, especially if you have a lower income. This means that if you need to be able to purchase a house, your solicitor could argue that you need more of the joint assets to do this.
It is important to note that if you have more than enough joint assets to meet both you and your ex-partner’s needs, then you will not necessarily be entitled to a greater share because of your disability.
Can my disability work against me in financial proceedings?
Your disability can 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 will be able to argue 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. 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.