Copyright Moore Barlow LLP (Moore Blatch and Barlow Robbins merged May 2020)

What if I want to divorce my husband/wife but they have dementia?

Separating from your partner or getting divorced can be traumatic and stressful. As a family law solicitor and mediator I appreciate the need to be sensitive to my clients’ emotional needs, but also those of their partner / spouse. Often I work in the collaborative process, or as a family mediator, with a family consultant to try to help support clients going through the process and manage heightened emotions or domestic abuse concerns.

If your spouse has dementia you may feel you cannot separate from them because their behaviour is not their fault, but as a result of their illness. Legally you are still able to divorce your spouse on the basis that you find their behaviour unreasonable and intolerable to live with, even if the behaviour is caused by a medical condition. This would also apply to, for example, alcoholic spouses, those who sustain a brain injury and their personality changes, or those armed forces soldiers suffering from post traumatic stress disorder after returning from tour. This may seem harsh, but it reflects the reality that for some people this behaviour, even though it is the result of a medical problem, is too much for them to live with.

It goes without saying, if your spouse has dementia, resolving matters relating to your finances and/or your children will need to be handled with extra sensitivity. The court can appoint an official guardian to represent a spouse who has lost capacity. Medical evidence from your spouse’s doctors about whether or not he or she is able to give instructions to their solicitor would be needed. We would ensure that your spouse is treated fairly and has all the protective measures in terms of representation available.

Both your needs and resources would be taken into account in resolving the division of your finances. Your spouse’s increased needs as a result of their dementia would also be taken into account in coming to an overall financial settlement, including any care costs, private healthcare costs and so on.  Any physical or mental disabilities of either spouse are a relevant factor for the court to consider.  Your spouse’s limited or complete lack of an ability to earn an income would also need to be taken into account, whilst ensuring that all available State benefits had been applied for, to help ameliorate the situation. 

In terms of any children, the court has to consider how capable each parent is of meeting the children’s needs. Consequently, protective measures may be considered to ensure your children are safe whilst spending time with their parent with dementia. For example, a third party could be present, such as a paid carer or supervisor, a trusted family member or friend, or the contact could take place at a contact centre under supervision. Counselling or other support for you and your children to help come to terms with the situation should also be considered.

Please contact Sarah French or another member of the Moore Blatch family team for further information.


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