Info & Advice

In sickness and in health: health issues when divorcing or splitting up

Being ‘sick and tired of’ somebody is outside the scope of this piece, but the impact of unhappiness and stress can affect health in a negative way, in contrast to studies that have found that enduring marriage can positively affect longevity, particularly of men.   That is a topic for medical or sociological musings, but whatever the cause of health issues, most are not going to go away simply because people have separated.

We have brought together a number of questions that have recently arisen in requests for advice or needed to be explored in cases to illustrate the approach to health in family law.

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I have a disability and/or chronic health issues. Does that make a difference?

The simple answer to the first question is a definite ‘yes’.

Lawyers negotiate against the background of what a court/judge would do when applying the law.  They speak in those terms, although in the vast majority of cases, the outcome will be negotiated and not ruled upon by the court.   Usually, the court will only become involved in approving a deal, not awarding a settlement, but the language lawyers use is as if a judge were looking at a situation.  People often go beyond what a judge might do and behave generously, particularly when they are fully-aware of the health problems of the person they are splitting up from.

The black-letter law for that is in Section 25 of the Matrimonial Causes Act 1973 (as amended) which sets out a list of the factors that the judge must consider when deciding what is ‘fair and reasonable’ in all the circumstances of the case.

In order that health issues are not overlooked in that exercise, specifically the court must consider

(e) any physical or mental disability of either of the parties to the marriage

which whilst expressed in terms of ‘disability’ is widened by more focused  provisions such as

  • Income and earning capacity and
  • Financial needs

So the courts are directed to focus on the financial impact of health issues, not simply allocate resources to positively discriminate and create a ‘contingency fund’.   That might be considered, but it is a secondary issue to ongoing support.   ‘Ongoing support’ means ‘periodical payments’ i.e. an amount paid monthly, even if expressed as a yearly figure.

How is monthly support worked out?

Support is based on any gap between reasonable needs and the income available to meet it.

When considering ‘income’ resources, unearned income should also be regarded, particularly when the entitlement to it is not means-tested.   Some benefits are restricted, but some are an entitlement as a result of the person’s health.     There may be some circumstances where the overall wealth or income of the parties would be adversely affected by what provision is agreed and it is reasonable to think things through with that as one factor, providing that there is a logical reason for the shape of the deal and not a conscious attempt to ‘alienate’ resources that should be used to meet need, rather than seeking benefits.

Both people have income needs and although some negotiators find it acceptable to adopt the approach of ‘Give my client what she wants and you can have what is left’ that is not how the law actually works.   Outside of cases affected by health needs, it tends to be the parent devoting more time to child care who gets support – which is statistically more often women – hence the ‘she’ above and whilst that outdated and inappropriate approach summarised above is inherently wrong, it does surface from time to time, particularly from inexperienced or aggressive lawyers who do not have the courage to tell their clients that what they want does not determine what a court would consider fair.  It is simply bad practise to ‘grandstand’ with unrealistic demands which will rarely translate into an approved settlement.  Cue disappointed clients.

Ongoing support is always a risk and when looking at risks, neither the payer nor the payee should be immune to changes in fortune: if a payer’s circumstances change as life moves on, the payee cannot be sure that the support remains affordable nor even appropriate.   If a couple had remained together, changes to either would have affected the family and so it is after splitting up.   Losing an income or job is something that can happen without blame and when that happens, the payee should be open to reconsidering what is fair and reasonable.

Judges can be scathing if a payee is hard-hearted about wanting their support irrespective of the circumstances of the payer.   As an example, a payee who had a wealthy family behind her and was no longer looking after their teenage son, took her ex-husband to court to enforce a joint-lives order, despite having been in a subsequent relationship which also produced a child and her having inherited a business. In contrast, the payer had been obliged to cease work to care for his terminally-ill mother, yet in all those circumstance, the payee sought to enforce payment of money she clearly no longer needed.   The judge not only refused to enforce the payment, he stopped the support with immediate effect.  He said that she had had too much for too long and that the joint-lives order had clearly been intended as being temporary for whilst the support was really needed, despite it having no fixed term.

The payer had not wanted to ‘rock the boat’ as he felt it would impact upon their son and had not dared to seek revision of the arrangements.

Often out of feelings of guilt or in the hope of lowering anger so that there is less impact on the children, payers are inclined to pay more than is realistic to assuage such a demanding ex, but when it becomes clear that it is unaffordable and needs to be reviewed downwards, what is achieved is a second round of conflict.    Better to reality-test provision and agree sometime affordable than to naively hope that agreeing will lead to peace breaking out.

Badly devised settlements are less likely to last and create further conflict.   That is also part of the philosophy of seeking a ‘clean break’ – ongoing financial dependence will often lead to conflict which is detrimental to both parties.

If the support is ongoing, then it is better for it to be thought through and well-explained to the parties before signed off/agreed.

Will my support go on indefinitely or will it end at some point?

Ongoing support is based on unmet financial need.  It is important to understand that support is not ‘sharing’ the family income-earning capacity going forwards.

Having unmet need at the time of splitting up does not mean that the person gets what was called in cases and trumpeted by the press as ‘a meal-ticket for life’.   As the Nuffield Foundation reported in 2018, the few widely-reported ‘Big Money’ cases skew public perceptions about spousal support and that in the study approaching 9 in 10 financial court orders featured an immediate ‘clean break’ with not even a restricted period of ongoing support.  Term maintenance is sometimes used where support appears likely to be needed for a somewhat predictable and planned period of readjusting after splitting up.

Even in cases with long-term health needs, the focus will be on the income issues and having a disability does not in itself preclude engaging in appropriate work and having an earned income.  Many people with chronic health conditions or disabilities are in work and since the Disability Discrimination Act in 1995 – now 27 years ago – and subsequent legislation such as the Equality Act 2010, the trend has been for workplaces to be more inclusive.  The perception of disability has been significantly affected by Great Britain doing fantastically well in disability sport on the world stage and people seeing inspiring performances from para-athletes in a wide range of disciplines – even the Strictly Come Dancing title was up for grabs, leaving aside the success of disabled chefs with Michelin stars and comedians who are all in the public eye.  Obviously a lot of disabilities and chronic conditions are hidden and the vast majority of people with disabilities hold down their jobs and indeed succeed without their disabilities being the centre of people’s perceptions.

So, with that in mind, the judge is directed to consider possible changes in circumstances

in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire

Whether a person’s earning capacity has been affected by their health or by caring for somebody, changes in earning capacity should be considered.

Even in 1973, there were some misgivings about the power of the court to make indefinite orders for financial support, but without evidence about the impact of that jurisdiction, it was decided to adopt a ‘wait and see’ approach to policy direction on how to best enable people to become independent after splitting up.

For many years, the ‘breadwinner’ was expected to support the financially weaker party indefinitely – often until remarriage – and make it the responsibility of the payer to ask to ‘call time’ on financial support.   ‘Joint-lives’ orders were the default until it became a duty of the court to consider a ‘clean break’ wherever possible (legislation introduced in 1984).   However, whilst it was expected that support would be varied by agreement as circumstances change, the order was often left indefinite, rather than identifying a specific point at which support should decrease or end: that often encouraged the payee to believe it was an open-ended entitlement and if the solicitors representing the payee were not thorough in their explanation that support was expected to diminish and eventually cease, the payee assumed that the provision was sacrosanct and immutable.   That false assumption has led to many disputes, often some years after the parties had split up and shared matrimonial property.

Does my poor health mean I get more or less capital?

As sharing of assets is related to meeting needs, then if for example a person has received personal-injury compensation, an insurance pay-out or a capital payment from a charity then it would seem obvious that a family court should look at such resources differently to the general assets of the marriage.   Damages for specific future needs or a medical assessment of needs – e.g. to adapt a home have been calculated and paid for that purpose.   Using the needs test, then retaining such asset after splitting up ought to be the starting point, but as with every decision about allocating resources, there is a balancing exercise to be conducted.

What about my case?

Where there are chronic health needs, each case will be looked at on its merits and there is no ‘rule’ about when support should continue and when it should cease: the principles are there in statute and case-law, but every situation is unique and the experience of a specialist family-lawyer

We hope these comments gives a broad idea of what might be considered, but for advice, people should consult a specialist with experience of real-life situations and problems solved.

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