Could My Health Impact My Divorce Settlement?

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Is health considered in financial remedies proceedings?

Among divorcing couples, it is not unusual for one party to have a disability or health problem. A difficult but common question on divorce is how to divide the couple’s financial assets. If they cannot decide between themselves, either can make an application to the court to decide. Parties will be asked at an early stage of proceedings to report any health difficulties they have. These might include a disability, long-term physical health condition or stress and anxiety as a result of a difficult separation.

In some cases, the fact of a disability or health condition itself may be in dispute. In such cases it is useful to think about the evidence which will best assist the court. However, the evidence gathering process should be proportionate to the impact of the issue on financial settlement. An experienced solicitor will be able to advise on the best approach.

How is health factored into the court’s analysis?

The overarching consideration of the Family Court in dividing assets on divorce is fairness. While fairness is a broad concept, the relevant law lists a number of factors to be taken in account. One of these factors is “any physical or mental disability of either of the parties”. Another key factor which may be impacted by an individual’s health is earning capacity. It should be noted that the court will not consider current earning capacity alone, but the earning capacity which is reasonable to expect a party to take steps to achieve. Unless the assets are very significant, the needs of the parties will also carry considerable weight. Of course, an individual’s needs may be affected by their health.

What impact will health have on the outcome of proceedings?

In reality, the overall impact of one party’s disability or poor health will depend on 1) how serious it is; 2) the impact it is likely to have on their current and future financial position; and 3) how these considerations weigh against other considerations in the case. As application of the principles involved is complex, it is crucial to obtain expert legal advice on how they apply to your case.

It is worth noting that a disability or serious health condition may weaken a party’s claim to the matrimonial assets, rather than increase it. This can occur in cases where one party receives disability benefit payments which are considerable in the context of the other assets in the case. Another tragic possibility is where one party has limited future financial needs as a result of a reduced life expectancy.

One or both parties’ health may impact the orders the court makes regarding property, capital or future income. However, this will always be weighed against other factors in the case.

Here to Help

If you need advice on any divorce or family matter, please get in touch with Tracey Dargan, Partner and Head of Family and Divorce.

Please note the contents of this article are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.