Divorcing a Husband or Wife with a Mental Illness
If your husband or wife has mental health issues it is natural to be concerned about whether you can get divorced and the impact of the divorce proceedings on your spouse.
In this blog, our North West divorce solicitors examine the difficult topic of starting divorce proceedings where your husband or wife suffers from a mental health illness.
For expert family law advice call our team or complete our online enquiry form.
Starting divorce proceedings when a spouse is mentally unwell
If your husband or wife is mentally unwell it may have nothing to do with the reasons behind your decision to separate or it may be a contributing cause. Divorce solicitors always recommend that before divorce proceedings are started you take the time to reflect on the reasons for marital difficulties and to see if the problems can be resolved. For example, through couple or individual counselling, a spouse sticking to a medication regime, or other strategies.
If a marriage has irretrievably broken down then it is right to be concerned about the impact of divorce proceedings on your husband or wife if they are unwell. Making sure they have access to support from friends or family or professional help from a counsellor is a good starting point.
Whilst divorce proceedings may sound stressful the reality is that getting divorced does not involve going to a court hearing or needing to blame your husband or wife for the marriage breakdown in the court paperwork. That’s because, with the introduction of no-fault divorce proceedings, there is no need to say why you want to get divorced. All you need to do is file an application (either jointly with your spouse or on your own) and then follow the new divorce court process to secure a final order of divorce.
Mental capacity, divorce, and family law proceedings
If your husband or wife is going through a mental health crisis there may be a question mark about their ability to make decisions within family court proceedings, such as your divorce application, negotiating a financial settlement, or responding to your application for a child arrangement order.
Your husband or wife may not have what is referred to as the ‘mental capacity’ to make decisions. In other words, they cannot understand the decisions they are making or the impact of their decisions. If this issue is raised then a medical professional will need to see if the person has capacity.
Mental capacity is not straight forward as a person may not have capacity even though they are living at home whilst someone who is sectioned in a hospital may have the capacity to play a part in court proceedings.
Mental capacity can be affected by a whole host of conditions such as a diagnosed mental health condition ( for example, schizophrenia or personality disorder) or severe alcohol or drug abuse, or through a physical condition that may impact capacity, such as a stroke or seizure.
A loss of mental capacity can be temporary in nature or permanent, depending on the nature and the severity of the condition.
Assessing mental capacity
Mental capacity is assessed by looking at whether your spouse has an impairment of their mind and if the condition means they are unable to make specific decisions when they need to. To be judged capable of making a decision your husband or wife needs to be able to understand the information they are being given, retain the information, and then be able to weigh it up to make a decision.
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Litigation friends and family law proceedings
If your husband or wife does not have the mental capacity to make decisions in divorce, financial settlement, or child arrangement order proceedings you can still go ahead and make your application but your spouse will need to be protected by the court appointing a person to act as their litigation friend.
You can not be appointed as their litigation friend as there would be a conflict of interests but a friend of your spouse or a family member could be appointed. Their job is to talk to the person who does not have capacity, to instruct their family law solicitor, and to act in their best interests. For example, your husband or wife may say that you can have everything (the family home, business, pension, and savings) but their litigation friend should be looking at what would be a fair financial settlement for both of you as your spouse will need somewhere to live and the means to support themselves.
If no family member or friend can act as a litigation friend, then the Official Solicitor may be appointed as your spouse’s litigation friend. The appointment of any litigation friend will end if a spouse can show that they have regained their mental capacity.
Divorcing a husband or wife with a mental illness
Divorcing a husband or wife who suffers from mental illness brings added stress for you. Sometimes it can feel as if your mental well-being is being ignored because your ex-partner’s needs are so great. At other times, you may be caught up in feelings of guilt or anger. You may have felt driven to start a divorce or commence financial settlement proceedings or be experiencing distress because you have applied for a child arrangement order as you are concerned about your ex-partner’s behaviour towards your child.
Whatever the reasons behind your emotional stressors, it is important that you have the right support behind you, including help from a specialist divorce solicitor with experience in advising those caught up in family law proceedings where one husband or wife suffers from a mental illness or is experiencing a mental health crisis.
For expert family law advice call our team or complete our online enquiry form.
