There are plenty of articles out there today which cover the devastating effects of divorce on people’s mental health. It’s very understandable too, as the breakdown of a long-term relationship is widely regarded as one of the most stressful experiences a person can go through, second only to the loss of a loved one. It’s all too common that depression and anxiety can easily develop post-divorce. But mental health issues aren’t just confined to post-divorce situations. The Stowe Family Law team in Reading frequently advise clients who are struggling to manage their divorce due to poor mental health or wish to divorce a partner who happens to be struggling with mental health issues. Sometimes a family breakdown can be influenced in part by the needs of a child with mental health issues.
Legal advice on divorce and mental health problems
The intention of this blog isn’t to help make a judgement call on whether a couple should separate due to physical or mental illness, because you can’t just slip into someone else’s shoes and truly understand their situation. Instead, Stowe can offer practical, legal advice on the complexities that can occur during a divorce case which involves mental health problems.
“Mental health problems can affect anyone”, said Rachel Roberts, Regional Director at Stowe Family Law. “I once acted for a high-flying career woman who had been unhappy in her marriage for some time and ended up neglecting her business. She fell into debt, her business was about to collapse, and eventually her marriage ended. What followed was a severe episode of depression.
“In the beginning, she gave regular instructions and the case continued; however, as her depression worsened contact became infrequent. She frequently missed court deadlines, leading to adjournments which had to be agreed to be the other party because of her health at the time.”
The main consideration in this case needs to be whether the individual with mental health issues has the capacity to agree to a divorce or financial settlement and provide clear instructions. According to English and Welsh law, an individual’s mental capacity is judged on the decision that needs to be made. For example, do they fully understand the information relating to a financial settlement in order to make an informed decision?
Assessing mental capacity
A doctor must undertake an assessment in the case that there are any doubts of someone’s mental capacity, to determine whether they’re capable of making important decisions they face during divorce.
“In this case”, Rachel explains, “the capacity to give instructions kept changing – with the client’s psychiatrist deeming her not to have the capacity, and then being fit to give instructions once more, and then on a later occasion deemed unfit again.”
In this situation, if the doctor decides that an individual lacks capacity, it’s possible to progress the case if a ‘litigation friend’ is appointed to act on their behalf and make any decisions in their best interests. This representative can be a friend or relative only if there is no conflict of interest. The Official Solicitor can be appointed to represent the unwell party if there is no one else suitable, but this isn’t necessarily a straightforward task, as consideration still must be given to other factors including how the case will be funded.
“Thankfully”, Rachel says “her health eventually recovered, and she was able to give instructions. The case concluded with her full involvement. However, the case had taken much longer than expected, costs had mounted, and the husband sought orders against the wife so that he could recover his costs. This was successfully opposed because clearly the wife could not be blamed for her mental health.”
Are you struggling with divorce and mental health problems?
Balancing a divorce with existing mental health issues, whether it’s you or your partner who is struggling, is a complex and emotional time for all parties involved.
If you would like expert advice on divorce and mental health problems or any other family law issues, please do contact Stowe Family Law’s Client Care Team to speak to one of their specialist divorce lawyers in Reading.
John King is Head Of Digital at Stowe Family Law LLP.