Divorce Due to Mental Illness
If you have come to the view that your marriage is over because of your husband or wife's mental health problems you are probably experiencing a whole range of emotions, including guilt and fears about the legal process and your future.
In this blog, our family law solicitors examine some of the things you may need to consider when divorcing a husband or wife who suffers from mental health issues.
Online and London Family Law Solicitors
For family law legal advice call the expert London family lawyers at OTS Solicitors on 0203 959 9123 or complete our online enquiry form.
Starting divorce proceedings
You may be concerned about applying for a divorce because you know that your spouse’s unreasonable behaviour is partially down to their mental health. With the introduction of no-fault divorce proceedings, you no longer have to explain why your marriage has irretrievably broken down in the divorce application.
The intention behind the change in UK divorce law is to make divorce proceedings less adversarial and confrontational. It also makes it a lot harder for your husband or wife to contest the divorce. For example, they can oppose the divorce if they say the court doesn’t have jurisdiction as neither of you are domiciled or habitually resident in the UK. One example of this is when you are both in the UK on a 6-month visitor visa.
Although there is no need to blame your spouse to get a divorce the process will still take around 6 months to complete.
Help during divorce proceedings
Divorce proceedings are stressful even if you do not experience mental health problems and even though you do not need to go to a court hearing to obtain a divorce. Either you or your husband or wife may benefit from help from a divorce coach to explore how you are feeling or to manage your stress levels.
One way to manage stress during a separation or divorce is to try and reach an agreement over parenting arrangements or the divorce financial settlement as quickly as possible. This can be achieved with early legal advice on your legal rights and your options. Talking to a family law solicitor at an early stage can ensure that you do not become entrenched in one position and therefore unwilling to negotiate to reach a compromise.
Can a mentally unwell spouse instruct a family law solicitor?
One concern of spouses who are divorcing a husband or wife who has a diagnosed mental health condition is whether their partner will be able to speak to a solicitor and play a part in the divorce, child arrangement order, or financial settlement court proceedings.
When a partner has severe mental health issues, they may not have the ‘mental capacity’ to instruct a family lawyer or to play a part in court proceedings. This does not mean that you cannot apply for a divorce, child arrangement order, or financial court order. If there is a question mark over your spouse’s mental capacity, they will need a medical assessment to check it out. If they don’t have capacity a next friend is appointed by the court. The next friend’s job is to act in the best interests of a person who doesn’t have mental capacity.
Child arrangement order applications where there are parental mental health issues
If one parent has mental health problems it may not affect their ability to care for their child or to have contact. In other situations, it can have a significant impact on their ability to meet their child’s physical or emotional needs.
If there are concerns about how mental health may affect what child arrangement order is in a child’s best interests the court can order that a parent participates in a psychiatric or a psychological assessment. If a parent refuses the court can't force them to engage but the court can draw adverse inferences about their unwillingness to participate.
An expert may recommend that a parent with a mental health condition has medical treatment or counselling before contact commences or before contact moves to an unsupervised basis. There are many different types of diagnosis and prognosis so it is best to not assume that problems can't be addressed or that it is not in a child’s best interests to spend time with both parents.
Negotiating a divorce financial settlement
Everyone can be intransigent but sometimes it can be taken to extremes where there are mental health issues at play. At other times, a mental health crisis may make someone want to walk away with nothing because of feeling depressed and unable to look to the future and what they will need.
When one spouse has a mental health condition it can be tricky to negotiate a divorce financial settlement and that’s why specialist help from a family law solicitor is important.
If negotiations are impossible because one spouse won't engage or won't provide financial disclosure you may have no alternative other than to start financial settlement court proceedings. You may need to do so urgently if your husband or wife is in a manic phase of their illness and is giving money or property away to friends or family or is spending large sums on items that they don’t need.
Family lawyers understand that mental health affects every family differently and so just because there is the same mental health diagnosis it doesn’t follow that there should be the same divorce financial settlement. That’s because the court takes a whole range of factors into account when deciding on an appropriate financial court order. The factors include:
- Physical and mental health
- Whether you have dependent children and their needs
- Your reasonable needs and those of your husband or wife
- The length of your marriage
- The existence of a prenuptial agreement
- Your ages
- Your earnings capacities
An experienced family law solicitor will look at things in the round when advising you on divorce financial settlement options.
Online and London Family Law Solicitors
For family law legal advice call the expert London family lawyers at OTS Solicitors on 0203 959 9123 or complete our online enquiry form.
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