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Home > How we can help > Family law – How we can help

Family law – How we can help

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Many people who have suffered a brain injury will experience changes in their existing and future relationships – brain injury impacts all aspects of your life – not only may the emotional, behavioural, physical and cognitive effects of your brain injury have an impact, but worries around your finances, the future and the impact of bringing a claim for damages could also affect your relationship with your spouse, partner or children. Whilst some relationships may strengthen, others become more strained over time or break down entirely.

In the event that your relationship has broken down, it is important to seek advice from a family law solicitor who has an understanding of brain injury and the special considerations that may apply.

Children

The law in England and Wales confirms a child’s right to see and know his or her parents and a Court will only prevent this in very limited circumstances, such as where a child has suffered harm or is likely to suffer harm whilst in the care of that parent.

Your injuries may mean that it is difficult for you to travel to see your children or care for them when they are with you. Consideration should be given as to whether someone could assist you with practical support, if your relationship with your former partner remains amicable, would they be willing to bring your children to see you, perhaps stay with you during these visits to provide practical help with caring for your children, or do you have a friend or relative who could assist in this way? If there is no-one within your own family or friendship community, there are paid services which could assist in this way, or seek help from your case manager or social worker.

Costs associated with helping to allow you time with your children, which you would not have incurred but for your brain injury, may be recoverable as part of any claim for negligence or damages which you bring. Be sure to alert your claims solicitor of any such costs and to keep receipts and records of expenditure and assistance given.

If your former partner is preventing you from seeing your children or acting in a way which you consider to be unreasonable and not in the children’s best interests, you may wish to seek legal advice to see whether it would be appropriate to make a formal application to the Court as to what the arrangements should be with regard to time with your children. If your child is over 11 and has indicated that they do not wish to see you, child inclusive counselling and support may help your child to come to terms with the changes to family life since your injury and their relationship with you, to help rebuild your interaction with your child.

A lack of mental capacity following brain injury should not affect your relationship with your children, and

Personal injury compensation awards

If you have received, or are likely to receive, compensation following your brain injury, you may wish to protect this, especially if these monies are needed to fund your future care or housing needs. It is sensible to take legal advice as to whether a cohabitation or pre-nuptial agreement is appropriate when entering into a new serious relationship where you plan to marry or live together. You may also wish to consider a post nuptial agreement or cohabitation agreement for an existing relationship, even if all seems fine, as this can help protect your compensation monies for you and your future needs, should the relationship break down in the future. Nuptial agreements are not automatically binding in English law on divorce, but are now regularly being upheld in Court in whole or in part, if they have been properly drafted and entered into and also provide for the financial needs of any spouse and dependent children.

In the event of a divorce, the law in England and Wales does not automatically ringfence damages received as part of a claim for brain injury. The court must take these funds into account as part of the resources available when looking at the overall outcome on divorce in providing for yourself, your former partner and any children. The needs of dependent children will be paramount, but your spouse does not have an automatic entitlement to 50% of your settlement monies. This is a complicated area and it is important when settling a claim following brain injury that the purpose for which money was awarded is clearly set out. A Court is more likely to require a sharing of certain parts of your settlement money than others, for example the portion of your settlement which is awarded for pain, loss and suffering is more likely to be liable to be allocated in part to your spouse on divorce, whereas monies allocated for future care costs and housing adaptations is less likely to be shared as they are awarded to meet your specific current and future health needs.

Similarly, money allocated to purchase a house which is adapted to your specific needs may also be less liable to sharing. However there are exceptions: If you ‘overspend’ on your adapted housing costs, perhaps buying a six bedroom mansion with land when a three bedroom property would meet your needs, the courts have in the past and will potentially say that this property will need to be sold and the adaptions moved to a smaller cheaper property, if that is the only way that the financial needs of your spouse and any relevant dependent children can be met. The same will apply to the family home which you already live in which may have been adapted following your injuries to meet your needs if the family home exceeds your reasonable housing need.

Legal fees

If you do not have any income or savings, you may be eligible for a legal fees funding loan or public funding (formally known as legal aid). Not all family law solicitors are able to offer public funding, so you should discuss this with your lawyer at the outset and if they are unable to offer public funding, they will be able to signpost you to a local firm who can. However public funding is only available in very limited circumstances.

If your marriage breakdown is as a direct result of your brain injury and you are bringing a claim for damages against a third party, it may be possible to include the cost of a divorce or action concerning your children as part of your claim – you should speak to the solicitor dealing with your claim about this.

Mental capacity and divorce

If you lack mental capacity following your brain injury, it is still possible for proceedings to be brought on your behalf or for you to be represented if your former partner brings proceedings. Your family law solicitor can signpost you as to who might assist you alongside themselves.

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  1. Child Brain Injuries training event – London – March 2021

    Wednesday, 3rd March @ 9:30 am - 3:40 pm
  2. Webinar: Clinical negligence – legal update

    Wednesday, 10th March @ 12:00 pm - 1:00 pm
  3. Webinar: Neuro-imaging in 2021

    Tuesday, 23rd March @ 11:00 am - 12:45 pm
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    Tuesday, 13th April @ 11:30 am - 12:30 pm

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Choosing the right legal adviser

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A brain injury can change a person’s life significantly – and that of their family. Many injuries are unfortunately the responsibility of a third party, in which case there may be the potential to make a claim for compensation. A successful claim could go a long way towards supporting a rehabilitation programme, or providing long term care, or simply easing the financial burden caused by changed circumstances.

If you think you have a claim, speak to several lawyers and ask lots of questions before you instruct anyone; you need to find someone you can relate to. When you speak to any one of our network members, you can be confident that they have a track record of handling brain injury cases and appreciate all the complexities.

Brain Injury Group
Brain Injury Group @braininjurygrp
12 hours ago
On 10 March at 12 noon Michael Walsh joins us from @serjeantsinn to provide an essential clinical negligence legal update, looking at recent cases and developments. Don't miss it! Full details on our website https://t.co/p5mMb0VUEl
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Brain Injury Group
Brain Injury Group @braininjurygrp
14 hours ago
To complement the services offered by our law firm members carefully selected associate members are brought on board. @ReCogHealth have been members for many years & often present on the topic of neuro-imaging. We're delighted to confirm their involvement for a further 12 months. https://t.co/WhFYLqEN76
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Brain Injury Group
Brain Injury Group @braininjurygrp
18 hours ago
Delighted to confirm @thorneycroft_uk continued membership in the North West for a further 12 months, to be members law firms must demonstrate their commitment to assisting clients to rebuild their lives, which includes financial compensation, rehabilitation, care & support. https://t.co/TU6OOdopv3
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Brain Injury Group
Brain Injury Group @braininjurygrp
2 days ago
Periodical payments - what price peace of mind - read the latest article by member firm @NestorIFA https://t.co/jouv0bzCvz
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Brain Injury Group
Brain Injury Group @braininjurygrp
3 days ago
We hope everyone enjoyed this mornings webinar on poor outcomes following mild traumatic brain injury, featuring Daniel Freidland, Consultant Neuropsychologist. The recording is available free of charge of members, charities and the NHS, fees apply to all others. https://t.co/A9GmhPdGCg
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Brain Injury Group @braininjurygrp
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Traumatic Brain Injuries Affect More than the Brain | Psychology Today https://t.co/QTMoGjVpIv
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