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Can my mental health be used against me in a divorce?

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Alongside bereavement, moving house and getting married, divorce is one of the most stressful experiences that can happen during someone’s life. Not only can mental health play a part in causing relationship breakdown, but divorce can also make the effects even worse.

Problems with mental health can take different forms and have varying degrees of severity, and in some cases, the fact of a mental health condition may be in dispute. In this article, we look at whether someone’s mental health can be used against them in a divorce?

When does someone have the mental capacity to make their own decisions?

Under the Mental Capacity Act 2005, someone is deemed to be capable of making their own decisions if they can:

  • Understand the information they need to make their decision
  • Remember the information
  • Apply that information to making a decision using analysis and reasoning
  • Communicate their decision

Someone is considered lacking mental capacity if they cannot make a specific decision on a specific matter or take a specific action for themselves. Capacity is linked to the facts of the case and the decisions that must be taken within it. For example, someone can be considered to have the capacity to decide they want to be divorced but still lack capacity to understand the details of their financial affairs. The legal position is that a party is deemed to have mental capacity unless it is established that they lack it.

If someone has been detained under the Mental Health Act in a secure unit, it does not necessarily mean they lack the capacity to take part in court proceedings. Additionally, someone can gain or lose capacity during the course of court proceedings if their mental health deteriorates or improves.

Can a mentally ill spouse instruct a solicitor or take part in court proceedings?

The first consideration is whether the party with the mental health condition has capacity to provide instructions and agree to a divorce, financial settlement, or arrangements for the children.

When a spouse suffers severe mental health difficulties, they may not have the mental capacity, as discussed above, to instruct a family solicitor or even play a part in the proceedings. If there is a question mark over someone’s mental capacity, they may need to undergo a medical assessment to confirm whether they have capacity. If someone is found to lack the necessary capacity, then a “litigation friend” is appointed by the court. Their role is to act in the best interests of the person experiencing mental health difficulties and are appointed by the Court of Protection.

How is mental health factored into a court’s decision on finances?

The main consideration when the court looks towards making a decision regarding division of matrimonial assets is fairness. Whilst this offers wide discretion, the law sets out a list of factors under the Matrimonial Causes Act 1973 that the court must consider. One of these factors is “any physical or mental disability of the parties”. Another key factor which may be impacted by someone’s mental health, is their earning capacity. Unless matrimonial assets are significant, the needs of both parties will also carry considerable weight, and, of course, a person’s individual needs may be affected by their mental health.

It is possible that someone’s mental health condition may weaken their claim to the matrimonial assets if they receive disability payments which are considerable in the context of the other available assets. On the other hand, a person with a mental health condition is likely to have increased income and capital needs. It may also be necessary to obtain medical reports on the mental health diagnosis, as it will help the court consider how best to divide the finances if they know the severity and extent of the illness.

Will my mental health be considered a conduct issue?

In certain circumstances, the court can consider the conduct or behaviour of a spouse, provided it would be “inequitable to disregard”. What is considered inequitable to disregard is a question for the court based on the unique facts of the case. But the type of behaviour that was previously used as unreasonable behaviour in divorce petitions before no-fault divorces came in, such as adultery, substance misuse or mental health problems affecting family life, will rarely be sufficient for the court to take into account when dividing the matrimonial assets.

The court can consider financial mismanagement by a spouse if it has caused significant detriment to the marriage. This can include things such as gambling, failing to pay bills, fraud, and transferring assets to prevent a spouse from gaining any benefit. Sometimes, suffering from mental health conditions can affect management of finances; however, the extent to which this may affect the outcome of a financial settlement, depends on the facts of the case.

Will my mental health condition affect the outcome of a Child Arrangements Order?

A child arrangements order sets out where the children will live and who they will live with, amongst other things. If mental health allegations are made in an application, the court will want to know how any mental illness is likely to affect the parent’s ability to care for the children. Sometimes, it will not have any impact, but there may be times when a child could be at risk of physical or emotional harm because of their parent’s mental health condition and the impact of their behaviour.

The court may want to order a report from a psychiatrist or psychologist if there are allegations of mental difficulties. However, the parent affected will need to agree to participate with the medical expert.

The court will ultimately make a child arrangements order based on its assessment of what is in the child’s best interests. Arrangements are therefore likely to depend on several factors including how capable each parent is of meeting the child’s needs. If there is a mental health issue, it is likely to be a relevant factor when deciding whether a parent can meet their child’s needs.

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