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3rd February, 2022 by Justine Flack
In the second of a series of articles, Head of Family Law at Howes Percival, Justine Flack discusses the impact of health issues within divorce proceedings.
Some will remember the BBC sitcom from the late ‘80s where Cockney pensioner, Alf Garnet gives care to his severely arthritic wife Else. Not without complaining or being very vocal about his views on various matters. He was however doing his best to uphold his vows given on marriage.
Health is an issue to be considered where any marriage breaks down. It is one of the section 25 factors within the Matrimonial Causes Act 1973 which the court has to take account of when considering the division of assets upon divorce - ‘any physical or mental disability of either of the parties’. Indeed some health issues can put such strain on the marriage that this is what breaks them, other times serious conditions arise after separation. So what impact can they have?
One of the first considerations may be whether a party has the mental capacity to litigate. Where this is in question, medical evidence will be required and if the person is found not to have capacity, they will need a litigation friend to make decisions for them. This might be someone appointed under a power of attorney, a court appointed deputy or a family member or friend.
Whether the illness relates to capacity or physical health, this may result in one person having some enhanced needs. This can affect income requirements or capital needs potentially relating to the accommodation which would be suitable for them.
This can result in there being a fine balancing act between the needs which each party has. Medical evidence may be required which might have to address life expectancy and future prognosis including the degree of recovery which is expected. A solution may require significant compromise or possibly some creative solutions, particularly where resources may be limited.
Where health needs are a central feature in determining the division of assets, this could justify a departure from equality. Whilst the other party may find that disappointing, the court has to take account of the needs of a person at the time it is being asked to consider them and consider future needs.
A shorter than average life expectancy won't deprive someone from their entitlement arising from the marriage, particularly where it is a long marriage. Neither will the court stand back from directing that the non-matrimonial assets should be used to ensure that someone's health needs can be satisfied. This was the situation in the recent case of ND v GD  where the wife was diagnosed with Young Onset Alzheimer's shortly after separation but most assets were non-matrimonial, the husband having inherited them from his mother five years before separation.
By the same token, it will not always be possible to ring fence a personal injury award. This is particularly so if some of the award has been made to compensate for loss of future earnings. Had the injury not occurred, these earnings would have been a resource of the family and available to meet needs. Where the award is to meet future medical and care costs, the court will no doubt take this into account. However, the court has to consider the overall needs of the family and in particular, those of any dependent children. It will therefore try and use resources to ensure the best outcome for everyone.
It is important to review the available assets; some people may have the benefit of income protection policies or other insurance, it may also be possible to access pension funds earlier where terminal illness is a factor. If a pension sharing order is being considered your divorce expert should be told about the health situation as it may affect annuity rates.
You also need to think about the litigation itself, is a divorce the best option? Without decree absolute the survivor may still benefit from the pension on death. Alternatively, might an expedited decree absolute need to be applied for?
Advice upon the impact of health issues and divorce proceedings is important. At an early stage you should also review your Will and make sure that you have a power of attorney in place. If you wish to understand the impact of death within divorce proceedings, see my previous article, Till Death Us Do Part.
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