Divorce Due to Mental Illness

In this article, our family solicitors look at the issues that can occur when separation or divorce proceedings involve mental illness.

Initial Discussion

This summary provides general information and does not constitute legal advice on any individual circumstances.

For an initial discussion and a no-obligation quote, get in touch with us today by simply calling us on 01234 343134 or email us at enquiries@fullersfamilylaw.com and a member of our team will get back to you.

Mental Health and Divorce

You may have decided that you cannot continue in a marriage or civil partnership because of your husband or wife’s behaviour stemming from their mental health problems or because of the impact of their medication on your home life. Deciding to separate or divorce because of a partner’s mental health-related problems can create lots of feelings of guilt and you may need the help of family or friends or a professional counsellor to support you through the process.

With the introduction of no-fault divorce proceedings, you do not need to say why you are getting divorced. All you need to say is that your marriage has irretrievably broken down. There are only very limited circumstances in which a husband or wife can object to the divorce and in the vast majority of cases there is no need to go to a court hearing to obtain a final order of divorce.

Mental Health and Capacity

In some situations, a spouse may be so unwell that they lack the capacity to be able to play a part in court proceedings for a divorce, child arrangements order or financial settlement. That does not mean that the other spouse is left in limbo. If a medical expert says that a party does not have the capacity to take part in court proceedings a litigation friend can be appointed to deal with the proceedings on their behalf or the court can appoint the official solicitor to act for them and represent their interests so you can go ahead with your application.

The fact that a spouse has been detained in a hospital under a section does not necessarily mean that they do not have the capacity to take part in court proceedings. In addition, a person can gain or lose capacity during the course of court proceedings if their mental health improves or deteriorates.

Sensitivity and Support

When divorcing someone who is experiencing mental illness, your divorce solicitor will approach matters with sensitivity and talk to you to work out the best strategy to reach an agreement. For example, your spouse may be triggered by certain phrases or by raising specific issues and we will not want to increase animosity unnecessarily. Alternatively, your husband or wife may feel overwhelmed by the thought of going to a family mediation session but be willing to attend a roundtable meeting with solicitors present.

Child Arrangement Orders and Mental Health Allegations

A child arrangements order sets which parent the child will live with and the contact arrangements with the other parent. If mental health allegations are made in an application for a child arrangements order the court will want to know how any mental illness affects the parent’s parenting ability. Sometimes it does not do so or on occasion, a child can be at risk of physical or emotional harm because of their parent’s mental health difficulties and the impact on their behaviour.

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

The court makes a child arrangements order based on its assessment of what arrangements are in the child’s best interests. The exact arrangements are likely to depend on several factors which include how capable each parent is of meeting the child’s needs. If there is a mental health diagnosis, it is likely to be relevant when determining that parent’s ability to meet their child’s needs.

Financial Settlements where there are Mental Health Issues

If a husband or wife has mental health issues, they may be unwilling to engage in financial settlement negotiations. That’s why your divorce solicitor must look at all your options to help you reach a resolution, such as using family mediation or collaborative law.

In the financial settlement negotiations, it may be necessary to obtain medical reports on the mental health diagnosis, as the court has to consider the health of a husband and wife as well as a range of other factors when making a financial order.

In any family law proceedings involving concerns about mental health, there are particular sensitivities requiring empathy from your divorce solicitor, as well as specialist knowledge of the law and how it can be used to protect your interests and those of your family.