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.
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.
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.