The impact of depression/mental illness in financial separation - Family Law Partners

The impact of depression/mental illness in financial separation

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The well-known mental health charity Mind reports that in England alone:

  • 1 in 4 people will experience a mental health issue of some kind each year;
  • 1 in 6 people report experiencing a common mental health problem, such as anxiety or depression each week.

There is a nuanced connection between depression and relationship breakdown. In some cases, the behavioural changes of one party, resulting from their depression, may cause relationship breakdown.  In other cases, the relationship may have broken down for other reasons,  but the divorce and separation process itself might have an adverse impact on one party’s mental health, which could ultimately lead to the development of depression or other mental illnesses.

In cases of more severe depression and mental illness, there are also important legal issues surrounding the matter of mental capacity that will need to be considered before embarking on the divorce and separation process. The relevant provisions to consider on this matter are found under the Mental Capacity Act 2005. The bar to being deemed without capacity to act in proceedings is very high but this is a specialist issue and specific legal advice should be obtained in any case where this may be relevant.

However, the focus of this blog post is to consider the implications of depression/mental health on financial separation. It will also consider the support that is available to those experiencing depression whilst managing a financial separation.

Will the court consider mental illness/depression as a relevant factor when determining the appropriate financial award?

When determining the appropriate financial award in any case, a court must give consideration to the factors set out at section 25 of the Matrimonial Causes Act 1973 (MCA).  The extent to which depression may impact the overall award will depend upon the interaction between the party’s depression and the factors set out at section 25 MCA 1973.

In accordance with section 25 (1) MCA, the court’s primary consideration must be to ensure the welfare of any children of the family. This remains true, regardless of whether depression or mental illness is a feature of the case.

Section 25 (2) then further lists more specific factors that must be taken into consideration by the court when determining the appropriate financial award to make.  The following link will provide you with an explanation of these relevant factors?

When looking at these factors closely, it is clear to see that a party’s depression could in some cases have a significant impact on the overall financial separation.

Specifically, section 25 (2) (e) of the MCA provides that consideration must be given to ‘any physical or mental disability of either of the parties to the marriage’. It, therefore, follows that one party’s mental illness may be a relevant factor that is considered by the courts as part of its exercise of discretion, if this illness/condition is evidenced as having a direct impact on the party’s financial needs e.g. if they are unable to work (either full or part-time, as explained below). The court will therefore need to consider whether the impact of mental illness on a party should influence that party’s financial needs, or whether it will impact that party’s ability to meet their own needs.  For example, it might be that therapeutic costs could reasonably be expected to be factored into a party’s scheduled income needs. Medical evidence might also be required if arguments are going to be made on this matter. For example, GP letters, medical notes (to provide insight into a party’s medical history if the issue is long-standing) or psychiatric reports might become relevant.

A connection can also be made between depression and a party’s income and earning capacity at section 25 (2) (a), as it is true that in some cases, mental illness such as depression can have an impact on an individual’s ability to continue work or seek employment. It might also impact on the type of work that one party can undertake or the number of hours a week that a person might reasonably be able to work. This might subsequently limit the extent of that party’s mortgage capacity and therefore could result in one party requiring an increased capital sum in order to re-house appropriately. Housing needs will in any case be considered as part of the court’s considerations at section 25 (2) (b) of the MCA. This is of course not to say that mental illness will always have an impact on someone’s ability to work, and it is of course true that many mental health matters can be managed appropriately so that there is little impact on that person’s day to day life or ability to meet their own needs. However, the point to make is that it is important that appropriate consideration is given in the cases where mental illness has substantially impacted that individual.

The court may also consider whether the party’s depression/mental health condition has resulted from/been aggravated by the stress and anxiety of proceedings. If this was to be considered the case, the party on the other side may seek to argue that any financial needs the suffering party is claiming should potentially be discounted as their condition should be treated as temporary. Such arguments should of course always be made in the most sympathetic way, but it is important to appreciate that, even against a backdrop of society/the media being far better in recognising mental health conditions and supporting treatment – the magnitude of someone’s ill health and the impact that it can directly relate to a party’s financial needs/ability to maximise their earning capacity etc. are frequently a focus of dispute.

It is also important to remember that depression itself affects no two individuals in the exact same way, as is the case with any other form of mental illness. After all, we are all genetically unique human beings with our own experience of the world.  There are also of course different severities of depression, and it is possible for one individual to experience several different types or severities of depression/mental illness over a period of time.  We advise anyone who considers themselves to be suffering from mental ill-health to contact their GP and have provided links to some helpful charities below.

Ultimately, the impact one party’s depression/mental illness will have on the overall financial award made cannot, therefore, be precisely quantified. The impact will vary case to case and will be dependent upon the specific circumstances of the individuals involved and the financial situation of the family as a whole. Specialist legal advice should be taken on the interplay between mental health conditions and the potential outcome in financial proceedings.

Process options

In cases where one party is experiencing a mental illness such as anxiety or depression, thought needs to be given to the most appropriate process option used to resolve financial disputes. For example, options such as mediation or solicitor negotiations could be better suited to assist the parties in reaching a financial resolution, which can help to minimise the stress of the process in comparison to going through the courts.

What support is available to those experiencing depression throughout a financial separation?

At Family Law Partners our focus is on looking after all our client’s needs. We recognise the impact that separation can have on a family’s physical, mental and emotional wellbeing. We actively ensure that our clients have access to emotional and therapeutic support throughout the financial separation process regardless of whether they are suffering from a mental illness.

Kim Crewe, our Director of Client Wellbeing, and Emilie Helm, a Director in our London hub and Personal Coach, urge clients to be honest about the difficulties they face and open to exploring the options that are available to them to support them throughout the process. Kim and Emilie offer one to one coaching sessions to support the wellbeing of clients going through a family breakdown. They can offer practical guidance and emotional support during the separation as well as help to create a vision for the next chapter of their clients’ lives. They also have access to a network of specialist professionals / medical support they can recommend, where appropriate.

Useful support links

Mental Capacity Act 2005 (legislation.gov.uk)

Matrimonial Causes Act 1973 (legislation.gov.uk)

https://www.mind.org.uk/

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