News Article

Divorce when your partner has mental problems



  Divorce when your partner has mental problems has to be a heart rending experience for you, as the person you loved has perhaps no longer got the individuality that created your relationship through no fault of their own. Family law specialist solicitors in Cheshire Stonehewer Moss recognise there are three areas to be addressed when considering Divorce when your partner has mental problems: 1. Emotional, 2. Family law, 3. Mental health law.

Divorce when your partner has mental problems emotionally is a personal matter for the partner without mental health incapacity but who nevertheless has suffered the strain of the relationship breakdown in such circumstances that may have caused mental ill health such as depression or anxiety. Michael Brennan, accredited family law solicitor at Stonehewer Moss,  recommends that time be factored in to any decision making process on divorce and enquiry made about services available such as counselling through your GP. Assuming you have addressed this personal issue, Michael summarises the second and third areas as follows:-

  1. In respect of family law, the absence of fault by your partner might on one level prevent a well founded petition for divorce being prepared immediately. Divorce often requires allegation of fault if you are to begin the process at once, upon the factor of behaviour. The statute identifies behaviour being such that you cannot live together, it does not state the behaviour must be intended to be cruel. Often behaviour characteristics relied upon are not wicked but simply incompatible  with the implicit regard for well being in a marriage of the other person. If you personally do not wish to accuse without fault, it may be that 5 years apart is the only factor on which divorce can be pursued in court. I always asks clients to consider the obvious anyway, do I need a divorce. The decree absolute effects inheritance rights and allows marriage to another but can the issues be addressed with less emotional impact simply by agreeing to live apart with the benefit of a professionally drawn and negotiated deed of separation?
  2. Mental health problems may impact on the family court in terms of assessment of need in finances. Tour partner with such problems may have a greater need for resources the court must consider upon deciding a just outcome in all the circumstances.
  3. If your partner lacks mental capacity as provided for by the Mental Capacity Act 2005, the legal issues may need to be resolved through the Court of Protection. Care needs to be taken to respect the individual and the Family Court cannot assume lack of capacity without clear medical evidence. An individual has to be given every chance to be able to make their own decisions and the nature of the mental health problem may therefore influence the expense and time that will be needed to resolve the legal issues. If the Court of Protection is ultimately required to act on behalf of the partner with mental health problems, it is required to act in the best interests of that person in all the relevant circumstances. In the context of divorce it established that the Curt of Protection will ensure the Judge has the necessary experience to address both the mental health law issues and financial remedy issues in divorce.
  4. The non spouse family members may wish to consider arranging a Lasting Power of Attorney that may reduce legal expenses if the person loses mental capacity later on.

For advice negotiation or representation in the Family Court call 01606 872200 e mail visit


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Stonehewer Moss Solicitors, Citadel House, Solvay Road, Northwich, Cheshire, CW8 4DP

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Stonehewer Moss Solicitors is a trading style of the Stonehewer Moss Limited, Registered in England No. 542 6583 and PIPLaw
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