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  • Tracey O' Dwyer

In sickness and in health?

The news of the billionaire Wolfgang Porsche divorcing his wife who has dementia has made tabloid headlines recently. Were it not for the fact that his wife has dementia, it would not have attracted the interest it has.

It is a depressing reality that a not insignificant portion of divorce clients have poor health or a progressive condition. Most people's marital vows will promise to stay wed in sickness and in health, but by the time a relationship reaches dissolution or divorce, that is probably not the only vow that might be broken.

It may well not be the illness that is the root cause of the relationship breakdown. However, as an example, if one does an internet search on Multiple Sclerosis (MS) and divorce, multiple results will come up showing that MS, along with other health conditions, is often associated with an increased risk of divorce.

In recent years, I went through a period where I had a number of cases where one party had MS. In two of those the MS had a significant effect on my client's day to day life, and in others it had less impact now but might (or might not) in the future.. I have had two recent cases where my client was being divorced as he (it was a he in both cases) had dementia. Both of those were second marriages. A number of other acute or progressive illnesses have featured in my caseload in recent times.

So, how does poor health affect a divorce, and the division of finances. Here are some ways:

  • With a condition like dementia, the client may not have the capacity to give instructions. A litigation friend may need to be appointed. If there is a Power of Attorney, it may be the same person, but does not have to be.

  • Housing needs. A client may have specific housing needs, and may need a single storey property or an adapted property. This may cost more.

  • Mortgage borrowing. It may be risky to take out a mortgage, if it is foreseeable that you might not be able to work long enough to repay it. This must be considered, and possibly an argument advanced to be mortgage free depending on how much of a risk this is, and what assets are available. Certainly in one of my recent cases my client was housed mortgage free, receiving a high portion of the assets, as a result of inability to borrow as her earning capacity was extremely limited.

  • Earning capacity. This may be limited as a result of poor health, either now or in the foreseeable future. This can affect mortgage borrowing, and also maintenance claims.

  • Pensions. Poor health can affect pension annuities. It might be that the person giving a pension share, needs to give less of a pension share. It is now accepted that the correct way forward in many cases is to achieve equality of income in retirement, and a person with poor health might be entitled to enhanced annuities.

  • Life expectancy. This might be unpalatable, but if there is a certainty of significantly reduced life expectancy, that might be relevant. For example, granting a pension share to a person with very limited life expectancy might not be the best way, as that part of the fund may be lost forever on the recipient's death. Earmarking or maintenance might be more appropriate.

  • In one case I had, future provision for respite care and carers needed to be considered.

A lot of the above comes down to need which is a very important factor in section 25 of the Matrimonial Causes Act 1973.

No-one likes to imagine that ill health might cause a relationship break down, and in many cases it does not, or the relationship might break down for other reasons. Nonetheless where poor health is a feature of the marriage, it is important that any relevance it may have is properly considered. Section 25(e) of the Matrimonial Causes Act 1973 specifically lists "any physical or mental disability of either of the parties to the marriage" as one of the factors the court should have regard to. It will not be relevant to every case, but should not be overlooked.

If you would like to know more, or wish to discuss this, please do not hesitate to get in touch here


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