Married couples will very often have used traditional wedding vows where they promise to support each through sickness and in health, however, a recent study has found that unfortunately chronic illness plays a significant role in the breakdown of a marriage. Statistics from a US study by the Journal of Health and Social Behaviour show that 75% of marriages afflicted with chronic illness end in divorce.
If a spouse falls ill, it generally puts a lot of extra strain on the healthy spouse over a period of time, which inevitably causes strain on the relationship as the marriage dynamic changes. Financial issues may start to weigh heavy on the relationship, as the other partner may need to take on more hours at work or even give up work altogether to become a primary caregiver for the sick spouse. The physical, mental, emotional, and financial burden of this can cause irreconcilable differences and the relationship to break down.
Does your chronic disease or illness impact your capacity to instruct a Solicitor?
The ability to provide clear instructions when ill, can make instructing a Solicitor more difficult. Depending upon the illness, the Solicitor will need to check the ill spouse has the capacity to provide instructions. The Solicitor will need to meet with you discuss your illness and will explain if they need to assess your capacity. If you do not have capacity a litigation friend or guardian ad litem may need to be appointed. They will then instruct the Solicitor on your behalf. There are some occasions when capacity may change as the illness changes and the Solicitor will keep this under review to ensure that the legal information and the important issues are understood.
If you are ill, and have capacity, you ideally want to be providing instructions on your ‘good days’ when you are feeling well enough to understand the legal issues. It is a good idea to contact a Solicitor and explain the situation, then they can be flexible about appointments to make sure they fit with you and your medical needs.
I have a terminal illness and have less than 3 months to live, I’ve been told it will take at least 6 month to get a divorce, Is there anything I can do?
Under the Divorce, Dissolution and Separation Act 2020 (which came into force on 6th April 2022) there is a strict court timetable of a ‘minimum period’ of 20 weeks between the start of divorce proceedings and when you can apply for the conditional order. You then have to wait a further 6 weeks before applying for the final order, to ensure a period of reflection. This means that the no-fault divorce process takes at least 6 months. If you have a terminal illness, however, you may not have time for this “period of reflection.” The Court understands that, and in exceptional circumstances such as terminal illness, it may be possible to have the process expedited. Your Solicitor can make a separate application and will need to present evidence to the Judge.
How does chronic disease or terminal illness impact the divorce financial settlement?
Section 25 of The Matrimonial Causes Act 1973 sets out legislation the Judge must consider in determining the financial settlement to be reached. A chronic disease or terminal illness is a circumstance that must be considered in divorce law. Section s25 (e) makes specific reference to ‘any physical or mental disability of either of the parties to the marriage’ as being a factor that the Family Court should have regard to in making its decision.
The Court will consider the income and earning capacity of the parties in a family law case. A chronic disease or terminal illness is likely to impact the ability of being able to work, and this will be taken into consideration.
The financial needs of both parties will be considered also, and this includes the housing needs of the parties and any children under 18. If the marital home has been adapted for the spouse with the health issue or chronic condition, the Court may feel it is important that they keep the home. However, the current and future needs of any children and where they will live will also need to be considered.
Do I need a Will?
Trying to organise your affairs when you have a terminal illness can weigh heavily on your mind. You may not even know where to start and this in itself can be overwhelming. Speaking to your Solicitor about your wishes will help you plan for when the time comes and will give you reassurance and peace of mind that you are putting your affairs in order. It is important that you record your wishes in a Will to ensure your estate passes to your chosen beneficiaries, usually children or other family members, instead of being distributed in accordance with the Intestacy Rules. Your Solicitor can provide you with advice upon how to protect and safeguard your share of any jointly owned assets that you own with your spouse, such as the marital home, to ensure they also pass to you chosen beneficiaries, in the event that you pass away before your Divorce is finalised. If you have young children, your Solicitor can talk to you about Trust Funds and the appointment of testamentary guardians so that your children are looked after and cared for. Your Solicitor can guide you through these legal procedures and support you along the way. Even if you already have a Will in place, a good starting point is to have this reviewed and seek up-to-date advice to ensure your wishes continue to be accurately reflected when the time comes.
Summary
If you have a terminal illness, you may have to face some difficult conversations in order to agree a financial settlement, but please be reassured that the terminally ill still have a legal right to their fair share of the marital assets, including the marital property. The circumstances will be unique to each divorce case and this type of divorce is very complex, so you will need specific tailored advice as to your individual situation. We are here to help process all of the divorce forms as well as negotiating with your spouse's Solicitor to find a common ground that is fair to everyone. The reality is, that the outcome will depend on how serious the disability or health condition is, and what impact it will have on the current and future financial position.
It is important to get the best legal advice and representation from the outset as you may need assistance in gathering the very specific information that will be required for the divorce paperwork and the legal proceedings.
We know and understand that everyone’s circumstances are different, some married couples will already have marital problems and the health issues will be the final straw, where others will be in healthy marriages that simply change beyond recognition due to the progression of the illness. We are not here to judge you and will provide emotional support as we guide you through the legal process every step of the way. We can also work alongside our Wills team at this difficult time, to provide estate planning services that give you the peace of mind that your assets will be protected.
For more information on the divorce process and writing a Will please visit our website.
- Director
- Solicitor
- Head of Family Law