With NHS England reporting that one in four adults experience at least one diagnosable mental health problem in any given year, it is important not to underestimate the role of mental health in divorce and dissolution cases. Whether poor mental health contributed to the breakdown of a relationship, or the separation itself has created mental health struggles, a good family lawyer will be alive to the relationship between divorce and dissolution and mental health.
Impact of Mental Health on Divorce and Dissolution
Mental health can vary in severity and impact. There are many people who suffer with mental health illnesses, that maintain positive family relationships. However, on occasion, poor mental health can contribute towards a relationship breakdown. In 2011, a multinational study was undertaken which looked at the association between mental disorders, marriage and divorce. The study looked at 18 mental health issues, including anxiety, depression, addiction, phobias and PTSD. It concluded that all of the disorders increased the likelihood of divorce, with a range of between 20% and 80%.
For the mentally unwell partner, their mental disorder may contribute towards feelings of insecurity, resentment, jealousy, guilt and shame – all of which can have a negative impact on a relationship. The effect of these struggles on a person’s partner is also subject to much research. Often, the person with a mental health disorder will need to focus on their own condition, with their relationship partner having to care for them and meet the needs of the wider family. This can feed into feeling unsupported or neglected. There can also be feelings of frustration, if they do not feel that the unwell partner is working towards recovery. The Priory, a leading independent provider of mental healthcare in the UK, reports that a survey of 80% of patients agreed that their mental health conditions had a detrimental effect on their family.
Impact of Divorce and Dissolution on Mental Health
We then have the other side of the coin, which is how mental health can be affected by the divorce or dissolution process. CALM, the Campaign Against Living Miserably, recognise that “beside the difficult emotions that you’ll no doubt be going through [on divorce or dissolution], there’s often a whole host of other things to think about. You may be worried about your children, home, work, money, relationships with others, or simply what the future holds next. These can all add up and make it tough to cope.”
This is reflected in the statistics, with an AARP survey undertaken in 2018 showing that 51% of people have increased feelings of loneliness after divorce, with 28% of people experiencing depression.
Recognition of mental health issues in divorce and dissolution cases
We know, therefore, that mental health issues are prevalent in divorce and dissolution, arising either before or because of the family breakdown. The next question is what role these mental health issues should play in the proceedings.
This is a sensitive question. The starting point is that both parties to a divorce or dissolution, and to any necessary financial remedy proceedings, should be able to fully participate in the proceedings. If a person’s mental health is likely to impact upon their ability to engage, there are steps that their lawyer can take to ensure they, or someone on their behalf, can actively participate. These are explored further below. The consequence of this is that mental health struggles are not accepted by the Court as a reason to stall a divorce or dissolution and resolution of the financial arrangements. The Court is very alive to the need, for both parties and any children of the family, to bring matters to a close without undue delay.
General Approach
At Stephens Scown, many of our solicitors are members of Resolution, a group of family law professionals committed to resolving matters constructively, pragmatically and without undue acrimony. Resolution members commit to a Code of Practice, which helps clients understand and manage the potential emotional consequences of decisions (alongside the financial consequences). In addition, it obligates the lawyer to act with objectivity. Family law matters are inevitably fraught with emotion but a good lawyer, whilst understanding that and emphasising with you, will help you see past that emotion, avoid delay and conflict through pursuing “satellite issues” and focus on an outcome that can move you positively into the future. Resolution also promotes continuing development, something which our lawyers take seriously.
Applied to separations where mental health is a factor, this allows us to sensitively handle the issues, whilst ensuring that they do not derail a case and result in increased legal costs. For example, we might adjust the tone of our correspondence to a spouse or civil partner with mental health difficulties to avoid triggers. Similarly, we may explore with a person why they are making a decision, rather than simply following instructions, and discuss alternative options with them which may be more appropriate. Our commitment to continual development means we are alive to the issues that face separating couples and the impact of mental health on the divorce or dissolution, and we share best practices on how to support clients in these circumstances and get them the resolution they require.
Of course, mental health difficulties are more than emotion and, no matter how good we are as lawyers, these challenges often require the input of professionals. We can help signpost you to support for your own mental health, or with navigating the mental health of your spouse or civil partner. We have close links with local counsellors, psychiatrists, psychologists, support charities and divorce/dissolution coaches. In addition to this, and only with your consent, we can work with your own support systems, such as family or mental health teams.
How can the process be managed?
The no-fault divorce process came into force on 6 April 2022, and also applies to couples dissolving their civil partnerships. The process takes away the need (or, indeed, ability) to attribute blame to end a marriage within two years of separation. In the context of mental health issues, this is a welcome change. Very rarely does the cause of a relationship breakdown impact upon the financial arrangements and therefore the need to point the finger would often unnecessarily increase tensions without good reason. The new process allows one or both parties to a divorce or dissolution to tell the Court that the marriage has broken down irretrievably, with no further explanation.
We recognise that the idea of Court attendance can cause heightened anxiety and stress for clients with mental health issues. However, Court is not the only option to resolve financial arrangements. In recent years, Family Law has seen a push towards Non-Court Dispute Resolution (“NCDR”): alternatives to the traditional court process for resolving finances. NCDR includes approaches such as mediation, private FDRs, arbitration and collaborative law. This allows for a resolution of the issues without a daunting attendance at Court and, often, avoiding the delays associated with an at times overwhelmed Court system.
An example of this is the private FDR, which is something we at Stephens Scown commonly use. A private FDR is a private version of the Court Hearing in which a Judge will listen to the parties’ respective positions and give an indication on the likely way forward. This indication will not be binding, but is intended to encourage the parties to reach an agreement, knowing that a future Judge, at a Final Hearing, is unlikely to differ substantively. The benefit of a private FDR is that parties have more control. They can choose the date of the appointment, the location of it and can even choose the private FDR Judge. On the day, the “Judge” is available for the full day, so there is not the same rush as there might be in Court, when only a set amount of time has been set aside for the Judge to listen to your matter. A private FDR can therefore be a lot more comfortable than a traditional Court Hearing, making it feel more manageable for those with mental health struggles. There is also the benefit that any outcome from a private FDR has to be agreed between the parties – again, allowing them control, rather than an outcome being imposed on them by a Judge. If agreement is elusive, however, then the parties can slip back into the Court process or consider other forms of NCDR to resolve their dispute.
What if mental health impacts capacity to engage?
Even with the best support in place, severe mental health may make it difficult for one party to engage. The primary consideration must be whether the person with mental health concerns has the capacity to agree to a divorce, dissolution or financial settlement. If this is in any doubt, the person should be asked to undertake a capacity assessment by a medical professional. It is important that the issue is dealt with as soon as it arises. If it is subsequently found that a person lacks capacity, the decisions made to date can be called into question.
Not all capacity is the same – someone may have capacity to make day to day decisions, but not the capacity to engage in Court proceedings which have longer-term consequences. Capacity is also not a fixed concept. Someone may have capacity one day, but not the next. This is why input from a medical professional is vital.
Progress can still be made when one person is found to lack capacity, but a representative needs to be appointed to act on their behalf – called a litigation friend. A litigation friend will step into the person’s shoes and make decisions for them in Court proceedings. They can be a relative, friend or, in the absence of anyone appropriate, a government appointed person called an Official Solicitor. This allows for a resolution, even if one party is lacking capacity, which ultimately is beneficial to all involved. The process of appointing a litigation friend is complicated, but our Family Team are well-experienced to support you with this.
If a person is deemed to have capacity, but still struggles to communicate and engage in court proceedings, an intermediary assessment can be undertaken. This looks at measures which can be put in place to support, with recommendations being adhered to by the Court. This could range from frequent breaks to the assistance of an intermediary in court hearings.
Will a person’s mental health impact the financial outcome?
We’ve spoken about the prevalence of mental health in divorce and dissolution proceedings, and how mental health difficulties can be sensitively and professionally handled throughout the process. However, one key question is whether mental health challenges ought to be accounted for in the financial arrangements themselves.
We first look to the factors that the Court considers when determining the division of finances on divorce or dissolution. These are set out in section 25 of the Matrimonial Causes Act 1973. We look at these where, even if finances are agreed outside of the Court process, the Court ultimately must approve any agreement for it to become binding and enforceable, and for all future claims the parties’ have against one another to be dismissed. Of the section 25 factors, there are several that could be applicable to a separation when one party has mental health issues:
- The income and earning capacity of the parties: This is particularly relevant if a person is unlikely to be able to work full-time (or work at all) due to their mental health challenges. The Court will need to consider whether this is a short-term issue – for example, one that may improve once the burden of Court proceedings has passed – or if it is likely to have a long-term impact on income and earning capacity.
- The financial needs, obligations and responsibilities of the parties: mental health challenges may impact the needs of the family, for example they may need to pay out for additional support or wish to remain living in a certain area where they have systems in place. The Court will need to consider how much weight to apply to these needs, particularly if there is limited money in the pot, and whether they ought to be prioritised.
- Any physical or mental disability of either of the parties: as well as looking at mental health challenges in the context of the other factors, mental disabilities is a standalone factor for the Court to consider.
- The conduct of each of the parties: The Court apply a high threshold before considering conduct as a factor which should impact upon the financial arrangements. However, there are some cases where severe mental health has led to conduct which the Court cannot ignore. For example, if an addiction has led to a significant depletion of the matrimonial assets, the Court may need to address this in the financial settlement.
These are just a few of the factors that the Court will consider and a Judge will need to weigh them up, ensuring that the parties can each meet their needs and, even more importantly, the needs of any minor children.
Notwithstanding, given that mental health may play a role in the division of finances, it is important that any mental health concerns are raised at the outset and evidenced where possible, with medical evidence of diagnoses, treatment and the long-term prognoses.
In summary, mental health issues can play a significant role in divorce and dissolution: from the breakdown of the relationship, to the approach taken to resolving matters and ultimately to the division of the financial arrangements. At Stephens Scown, we are experienced in sensitively handling cases where one or both parties have mental health struggles. We recognise it is not a one size fits all approach, and use our legal expertise to find the best way forward in your circumstances – be that through our communication with you or your spouse, through the use of NCDR or by working with other experts to ensure you have the necessary support in place. Contact us today by phone: 0345 450 5558 or by email: enquiries@stephens-scown.co.uk