September 20, 2024 • 39 mins
Tamsin Caine is joined by Nicola Bright on our latest podcast episode - they dive into the complexities of divorce involving special needs and disabilities. They discuss child and financial arrangements in these challenging circumstances.
Nichola Bright
Nichola has been practising family law since 2008 and has worked at highly regarded practices in Cheshire and Lancashire. Nichola joined Myerson in 2012 and is now a Partner at the firm.
Nichola advises on a wide range of family matters, including divorce and high net-worth financial settlements, separation, co-habitation, pre-nuptial agreements, complex disputes regarding children, fertility law and surrogacy law.
Nichola is a committed member of Resolution and has achieved specialist accreditation in complex financial remedies and private children law.
Nichola has been named within the Legal 500 as a ‘Rising Star’ for several years. She has been described as ‘always very well prepared’ and has ‘good attention to detail whilst not losing sight of the bigger picture. She gives robust advice but always maintains good relationships with her clients.'
https://www.myerson.co.uk/personal/family-law/divorce-solicitors
Tamsin Caine
Tamsin is a Chartered Financial Planner with over 20 years experience. She works with couples and individuals who are at the end of a relationship and want agree how to divide their assets FAIRLY without a fight.
You can contact Tamsin at tamsin@smartdivorce.co.uk or arrange a free initial meeting using https://bit.ly/SmDiv15min. She is also part of the team running Facebook group Separation, Divorce and Dissolution UK
Tamsin Caine MSc., FPFS
Chartered Financial Planner
Smart Divorce Ltd
https://smartdivorce.co.uk
P.S. I am the co-author of “My Divorce Handbook – It’s What You Do Next That Counts”, written by divorce specialists and lawyers writing about their area of expertise to help walk you through the divorce process. You can buy it here https://yourdivorcehandbook.co.uk/buy-the-book/
To learn more about our podcast sponsor Ampla Finance – access their product guide here: https://bit.ly/3Ieqmuc
Or complete enquiry form https://bit.ly/3W4J7pz and one of the team will be in touch.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Tamsin Caine (00:06):
Hello and welcome to today's episode of the Smart
Divorce Podcast.
We've got another specialepisode for you today and we are
going to be talking about whathappens with financial
settlements where either thespouse or one of the children
has extra needs, has adisability or some other form of
(00:30):
additional needs, meaning thatspouse working is very difficult
and there are also ongoingresponsibilities, caring
responsibilities throughout thespouse's life.
So I am joined to talk aboutthis fascinating subject which
comes up all the time in thework that I do, by the wonderful
(00:52):
Nichola Bright from Myersons.
Hi, Nichola, how are you doing?
I'm fine.
Thank you for that lovelyintroduction.
No problem, I'm going to ask youto tell us a bit about you .
Nichola Bright (01:05):
They will live on separation, or perhaps the
(01:27):
amount of contact they will havewith each parent.
Um, I also deal with issuessurrounding surrogacy and
fertility law, which falls underthe family law umbrella.
I assist people with prenuptialagreements and postnuptial
agreements, and I also help withmore specialized things such as
(01:50):
farming divorces or divorceswhere there is a farm involved.
It's quite vast really in termsof I pretty much do all family
law.
The only thing we don't coverin our department is if there's
an unmarried couple who are indispute about what to do with
their property.
It falls under civil law andtherefore we have a separate
(02:11):
team at Myerson who deal withthat.
But everything else to do withthe family we will assist with,
and really it's about family.
Breakdown is the main source ofwork in terms of divorcing
people.
Getting them back to ahopefully stable financial
position and assisting them withtheir finances is the majority
(02:31):
of the work I do, and withinthat obviously there's lots of
variations disabled children andadults being one of them.
Tamsin Caine (02:38):
Absolutely, and you've worked in family law for
quite some time.
I mean people who can see youbecause they're watching on the
YouTube channel will know youdon't look like you're old
enough to have been doing thisfor some time.
Nichola Bright (02:51):
Thanks, well 15 years, I think this year, or 16
years this year.
I've been working in family andI've been at Myerson for 11
years, so I've been here a longtime.
Part of the furniture now basedin the centre of Altrincham.
So I think because I've beenhere for a while, you get to
know lots of people locally and,yeah, it's just a lovely place
(03:15):
to work in Altrincham and atMyerson as well.
So I'm very lucky.
Tamsin Caine (03:19):
Absolutely, it certainly is.
The cracking firm and yourfamily team there are all
fabulous, thank you.
So we're going to talk today andthis situation comes up a lot
in questions from clients andactually seems to be coming up
more and more.
So if we start off with thesituation with children so
(03:46):
children who have disabilitiesand these can be things such and
when I say it's coming up moreand more, I think because what
I'm finding from clients is alot of children with additional
needs, children with additionalneeds such as neurodiversity,
(04:11):
autism, adhd, some issues whichin some cases, depending on
where on the spectrum they are,they can happily hold down a
full-time job or a part-time job, but in some cases, working for
these children is not apossibility and even living
independently in the future isnot a possibility.
So I think we're looking at asituation where certainly one of
(04:34):
the spouses is going to havecaring responsibilities for the
rest of their lives and ispotentially going to need to put
something in place for thosedependent children, but after
they're not able to care forthem themselves any longer.
So let's start with um, withcontact, so how where the child
(04:55):
might live, um, and and wholooks after them, and so on,
Nichola Bright (05:02):
So most of the time when first separate, they
can sit down and agree somethingbetween themselves and it's a
kitchen table discussion andthey both parents are in the
right headspace to decide what'sbest for that child or the
children.
They may have a sibling groupwith the same difficulty.
(05:24):
So autism doesn't run infamilies, for example.
So you may have two or threechildren with similar needs or
or the same diagnosis but verydiffering needs.
But each family is so differentit's hard to really go into
that in any other detail, otherthan everyone knows that every
family is unique.
So if the parents can sit downand agree something that they
know is right for that child,then that that is going to be
(05:45):
the absolute best way to dealwith it.
And we don't see those cases.
They only come to us if theycan't reach an agreement.
So there are lots of familieswho manage this without
solicitors and the courtsbecoming involved.
I am really struggling.
My ex doesn't seem to get it,doesn't understand that.
(06:05):
You know, let's call this childSarah.
You know Sarah has thesedifficulties and she simply
doesn't like change.
And he doesn't understand that.
He thinks she's going to adaptto a 50-50 arrangement.
Those kind of conversationsthis is quite a common problem.
We get where one parent justdoesn't seem to understand
perhaps because they've not beenthe primary caregiver, or don't
(06:26):
want to really understand it,because it means that they won't
be seeing the child as much,sadly, that there may then be a
dispute about where this childshall live or how much contact
they should have with the otherparents.
So we would initially send themoff to a mediator where they
could hopefully sit down with amediator to try and try and
reach an agreement, or, you know, looking at all the needs of
(06:47):
the children in the in theparticular case.
Now, if that's not possible,some cases end up going to
solicitors and then courts as alast, you know, last resort, um.
So when I'm talking now aboutwhat the court look at, I'm
really talking about those casesthat end up before a judge, um,
so that you, your listeners,know what the courts will look
(07:08):
at when you're dealing withchildren with disabilities and
special educational needs.
So when they make any decision,when a court makes any decision
about a child's care or thecontact they have with the other
parent or who they're going tolive with, the welfare principle
, which means that the core hasto give paramount consideration.
So that's above everything elseto the welfare of the child.
(07:31):
So in this assessment you'relooking at the child as a unique
being, as part of a siblinggroup potentially, and looking
at their specific care needs,which are going to differ from
case to case.
Like you said, some childrenwon't need much handholding but
do have additional needs Saythey have some support at school
all the way down to physicaldisabilities where they are
(07:55):
reliant on wheelchairs and care,or severe autism, perhaps where
they're non-verbal, so reallydiffering extremes.
Autism, perhaps where they'renon-verbal, so really differing
extremes.
And so there's no uniformapproach as to assessing what's
in the best interests or what'sum, what's going to satisfy this
paramount consideration test.
But the judge has to considerthe disabilities as part of that
(08:18):
, so it can result in differentdecisions by the court for
different sibling groups.
So you may have decisions bythe court for different sibling
groups, so you may have.
It may be that you have, youhave two siblings, one, both on
the autistic spectrum.
One is, is um, at a you know, amore severe stage or
presentation than the other.
And it may be that that childhas less contact or has a
(08:40):
different contact arrangementthan their sibling.
So that that can happen.
I had a case where there wasthree children, all with quite
severe autism and Asperger's,and two of them expressed
verbally.
They wanted to see dad and didsee dad regularly, and then the
youngest one just couldn't copewith any change, was non-verbal.
So there was a differentarrangement for him for now,
(09:02):
which then changed in the future.
So very, very different.
So the court will look at whenthey're looking at a live with
argument like who the childshall live with, the court are
going to look at to what extenteach parent is capable of
meeting the children's needs todecide whether what would be in
the child's best interest.
So courts have really wideranging powers as well, and they
can even make decisions aboutwhether a child receives a
(09:23):
particular medical treatment ornot if there was a dispute about
that.
So it really is a balancingexercise and it may well be that
most of the time the court aregoing to need assistance from
CAFCAS on this, who who work forthe court as an advisory
service, who will go out andmeet the parents and meet the
children so that the parents canbe satisfied that everything's
(09:45):
being looked at in a lot ofdetail, rather than a judge just
sat there only with informationbefore him or her and then
making a decision.
Actually, there's someone onthe ground going to see the
family and they may see thatfamily several times to decide
what to advise the court, andthey will then advise the court
what's best for the childrenWonderful.
Tamsin Caine (10:02):
Crikey, it's a lot .
It's a lot, isn't it?
So talk to me about CAFCAS,just very briefly.
What are they?
Who are they?
What does it mean?
What do they do?
Nichola Bright (10:16):
So CAFCAS work for the court system, for the
justice system, and they are anorganisation usually of
ex-social workers.
Workers actually people in inthe social work field often go
and work for kafkas or they orthey could be trained
specifically by kafkas to dothis work.
So they will.
They will write to the parentson an app.
(10:38):
If someone makes an applicationto the court, the first thing
they do is write to the parentsand carry out what's called a
safeguarding check.
So they do things like policechecks, social services checks
and have a really detaileddiscussion with each parent
before the case even goes tocourt to decide what the issues
are and whether they can advisethe court at an early stage
whether actually this needs alot of investigation, this needs
(10:58):
more work.
So when you've got a case wherethere are children with
disabilities and special needs,the likelihood is at that very
early stage CAFCAS will say tothe court we need to do a full
assessment here, we need toprepare a full report of
recommendations and it's goingto take three to four months to
complete because they will meetthe family several times and
then prepare reports, orsometimes addendum reports and
(11:19):
further reports, so that they'reinvolved with the family from
start to finish and they're areally great organisation and
the court wouldn't be able tofunction without them, because
there's no one, like I say, onthe ground actually advising the
court what's in the bestinterest of these children.
Tamsin Caine (11:34):
Yeah, no, they sound ace.
That sounds like a great plan.
And so then we move on to thefinancial situation, because
where you've got, where you'vegot families where the children
don't have additional needs,essentially the the recognition
(11:55):
is that, although I know frompersonal experience, this isn't
actually the real case in reallife.
But, um, children in class,there's not children anymore,
and not needing maintenance etc.
From from the end of their alevel year.
So age 18, yes, as I say, inreality, I'm sure most parents
(12:17):
who have children over the ageof 18 know that they're still
going to get financiallyresponsible they certainly can
do, but where you've gotchildren with additional needs,
with disabilities, with specialeducational needs, that that
continues and can well continue,as I said before, throughout
their lifetime.
So how do financial settlementsdiffer for those families?
Nichola Bright (12:45):
Yeah, so disability of a child and an
adult child, so a child beyondthe age of 18 who's still at
home either by virtue ofdisability or not, so that can
influence what is fair andreasonable in two ways so it can
affect the adult themselves andit can affect the child
(13:06):
directly.
So the the legal position is, Imean, I say, straightforward.
It doesn't soundstraightforward but essentially
the court's going to look at howthat disability affects, in
short, the primary caregiver, sothe spouse who cares for the
(13:27):
child most of the time, how it'sgoing to affect their financial
position.
We can assume it's going tohave a negative impact on their
financial position.
So if we just scale back a bitand look at what the, what the
law provides for a disabledspouse, we can kind of work from
there.
So if you, within within thelegal framework that we we use
(13:52):
within this area of law it'scalled the Matrimonial Causes
Act that we look at and there'sa really important part of that
act called Section 25, which hasa list of factors that the
court must consider whendeciding how to divide finances
and how to divide the assets ofa marriage finances and how to
(14:13):
divide the assets of a marriage.
And so that health issues arenot overlooked.
The court have to, as part ofthat process, have to look at
one of the factors, which is anyphysical or mental disability
of either of the parties of themarriage.
So that covers your spouses.
So the focus there is thereforeon the disabled person's
financial needs and their incomeand earning capacity and
(14:34):
looking at the financial impactof the health issues.
And in cases where you've got adisabled adult divorcing,
things like a contingency fundmight be needed for care needs
or ongoing medical and ongoingperiodical payments for ongoing
medical needs medical um,ongoing periodical payments for
(14:54):
ongoing medical needs.
So they will, they will havesome benefits.
Hopefully the benefit systemwill provide some support, but
the court will look at any unmetneed where the gap needs
bridging and often that meansthat more money is needed from
the other party, if it, if itallows.
So there can be an unfairdivision of assets.
What we say unfair, we, when Isay unfair, I mean not 50 50,
because that the other personsimply wouldn't be able to
(15:16):
survive without it and wouldn'tbe able to meet their own, their
own needs.
And when you look at disabledchildren of those of those
spouses or disabled adultchildren, there's nothing
specific in legislation relatingto a disabled child, but the
actual section 25 that I'mreferred to has an overarching
(15:39):
provision at the top which saysthe court's first consideration
is given to any welfare of anyminor child under 18.
So that covers your children.
But then what if the childrenare adult children that are
disabled?
And that's where things are abit more blurry.
Um, but this is where it linksback to the spouse's needs,
(16:03):
because they are going to havecaring responsibilities and
therefore their income andearning capacity is going to be
very different from perhaps theother spouse because of these
caring responsibilities.
So that's really the startingpoint is to look at the
financial impact on that parentspouse who's looking after the
adult disabled child.
You know this could be alifetime, they could be looking
(16:24):
after them for their whole lifeand then then then you need to
look at, like you said before,what happens when they die.
Where do the children?
There needs to be provision forthose children to be cared for
when they're in their 40s, 50s,60s.
So all of those factors play apart.
And they also look at thingslike adapted homes, specialised
equipment, and all of that paysa part in the share of the
(16:46):
assets of a case.
So you are going to end up with, most likely, a case where more
of the assets are going to begoing one way than the other to
really meet those needs.
Um, and to not do that would bewould leave someone financially
destitute.
So I've got you know, everycase is different, like I say,
but it would be very.
I'd find it very difficult tosee a case where someone will be
left without enough money tokeep their adapted home, for
(17:08):
example, or pay for a disabledadult's child's medication, or
their electricity bill could behuge because they're in the
house all the time, becauseperhaps they're immobile.
Tamsin Caine (17:19):
So there's lots of factors, but you know it's huge
expense to one party usuallyyeah, absolutely, because the if
you're looking at your, yourneeds as an individual, so once
the children are grown up andassumed to have to be
financially independent, yourcosts are going to be just for
(17:41):
for one adult.
Your needs are just going to befor one adult.
Yeah, and it's.
It's feasible to see you movingdown.
You know, downsizing to a smallhome, for example, those
options aren't available wherethere are caring needs, because
you're actually still paying for.
You know, even simple thingslike you don't get the single
adult discount on council taxbecause there's two adults there
(18:04):
.
So all of those things, all ofyour costs, your food costs,
your electricity costs, your gascosts, I mean they're not going
to double, but they are goingto be higher if there are two
adults.
Nichola Bright (18:19):
this child's going to is going to stay there,
they're going to stay thatthey're never going to drop.
Like you can have that optionin other cases where the
children go and leave the home,go off to uni, potentially the
options are downsized andtherefore, as you, she feels you
just haven't got that option,you haven't got that freedom at
all.
Tamsin Caine (18:35):
Yeah no, definitely.
Do you tend to find that caseswhere these issues are um, are
kind of in the mix, settle outof court or do they cop?
Do they often end up requiringa court to make a ?
Nichola Bright (18:56):
It's difficult for me to answer that because I
only see, like the worst ones,which because they only really
go to solicitors when they can'tagree I mean, we, if we get
them as new cases, obviously wealways try and settle them out
of court.
I'd probably say it's about50-50, in terms of which ones
settle at mediation and a bit ofnegotiation through the
(19:16):
solicitor and which ones have togo all the way to a court and a
decision by a judge, whetherthat's to do with child contact
or whether that's to do withfinancial asset split.
Yeah, I'd probably say it'sabout 50-50.
It's really difficult when theygo to court because it costs a
loter's allowance and they can'twork.
So it may well be that they doget legal aid if there's been
(19:56):
domestic abuse or some form ofabuse within the relationship.
So it's really difficult Ifthey do end up going to court.
That's another financial factorto take into account, because
they can say to the court well,this is how much I've spent on
legal fees, and then there hasto be allowance for that as well
, and whether they're dividedbetween the two spouses or not,
there's there's all sorts ofthings to take into account when
(20:19):
you have to make an applicationto court and some people rely
on litigation funding to fundtheir legal fees.
So they'll end up applying to athird party lender who'll fund
their legal fees that they thenpay back at the end, which is
like a liability, obviously adebt they'll have to pay, and
I've seen cases where the otherspouse has been ordered to pay
those fees because there simplyisn't the money available from
(20:42):
the spouse with the disabledchild, disabled adult child or
disabled child to pay it.
So it's, we try and keep themout of court because of all
these extra considerations.
Mainly there's a lack of income, lack of earning capacity
Really tough cases to deal with.
Tamsin Caine (21:00):
So if you've got a primary carer or primary caring
parent who the child lives withdisabled adult child, let's be
specific about it.
He lives with them and theylook after.
Let's be specific about it.
He lives with them and theylook after them kind of all the
time and there's little inputfrom the other spouse.
Did the court make provision orfeel that it's reasonable to
(21:25):
have as a need the respite carefor the caring spouse?
Nichola Bright (21:30):
Yeah, they would consider that as a very
important need.
So when you prepare your casefor court you have to list for
the court a really detailedmonthly outgoing schedule which
covers all your financial needs.
So respite care should be onthat schedule and it it's then
(21:51):
look at, looked at as a whole,so say, if your needs let's just
say for argument, say, arethree thousand pound a month and
you get benefits of, say, athousand, there's a gap there of
two thousand and that respitecare would be taken into account
as part of that plugging thegap.
Um, and if the other person canafford to pay maintenance and
you know I'm assuming everyone'sa high earner.
They're not these cases, don't?
(22:11):
You know these cases can bereally difficult.
You could have the other parentearning very little as well.
And therefore you're looking atcan we sell cap?
Can we downsize?
Is it possible to downsize torelease capital for these
ongoing needs?
Um, but yes, it would be takeninto account absolutely.
Respite care, because it'sreally expensive.
There are I mean, I know thatthere are some local authorities
(22:32):
who do provide respite care, um, and don't charge for it, but
you know it's few and farbetween and it's really hard to
get that service.
It's a postcode lotteryabsolutely so.
Tamsin Caine (22:43):
If there is the money in the family, yeah,
respite care should be includedin the ongoing needs, because
and it's not considered as a aslike a big luxury it's
considered as something that's aneed even even holidays are
taken into account as a need.
Nichola Bright (22:59):
It's not that they're considered as a luxury.
You know everyone's entitled toa holiday.
Holidays with a disabled adultchild, if it's possible, are
going to cost more, so it's.
You really have to.
When you're doing these budgets, you really have to think very
carefully and sit down with yourclient.
So I'll sit down with them andgo through everything in detail
and they won't think about thissort of stuff and I'll say you
know how much does respite cost?
(23:19):
How much will a holiday cost?
What's the extra cost fortaking the wheelchair on the
plane or what's the extra costof taking equipment?
And they really need to thinkabout it.
And it's almost like it can belike three pages long of just
all these different, yeah,outgoings, but across the year
you spread and you know holidaysyou don't take every month.
You spread the cost across theyear so you have an average yeah
(23:41):
, so that there's lots to dowhen you get divorced, sadly.
So there is a lot of homeworkfor someone who's going through.
It's really difficult sometimesthere's some, you know to sit
down and think of everything.
So I'll often send them a biglist to jog their memory about
things they might forget to putdown.
Tamsin Caine (23:55):
Yeah, yeah, absolutely.
And as you say when, whenyou're looking at disabled adult
children, that there is more,there is even more.
Or you know, or disabledspouses you know there could be,
I don't know um like a scooterinstead of a wheelchair, because
so that they give, get someindependence, maybe some changes
(24:19):
that need to be adapted to theproperty to enable them to live
there alone rather than if theywere living with the spouse
there.
You know those, those sorts ofthings have all got to be taken
into consideration, don't they?
Yeah, they really do so.
Child maintenance is generally,as we talked about before,
payable to um from one spouse toanother spouse until the child
(24:43):
is 18, or kind of endingrequired schooling.
What's the situation fordisabled adult children?
Is the maintenance payable forthem post 18?
Nichola Bright (24:56):
Yeah.
So if they're post 18, thecourt has the power to go beyond
the typical government regime,which is the child maintenance
service regime which we all knowand love, which ends when the
child finishes A-levels anddoesn't cover anything like
university or anything beyondthat.
So, but where there is adisabled child, the court do
(25:18):
have jurisdiction to go beyondthat CMS that's child
maintenance service regime.
And there's another provisionunder Schedule 1 of the Children
Act, which is a different areaof law that we can look to,
where someone can apply fortop-up maintenance.
So lump sums, open-ended lumpsums, for things like adapted
(25:39):
wheelchairs or adapted equipmentneeded in the home, um, or it
can be anything, or it could befor an adapted car for a child
that can drive but needs anadapted car, um, and also for
housing provision for a disabledchild.
So if this is particularlyhelpful in a case where you've
got unmarried parents, wherethere's no automatic right for
(26:01):
one spouse to provide the otherwith the property or divide
their capital, for example, theschedule one of the children
acts can, where you have adisabled child, you can actually
apply for housing provision fora disabled child.
That house is always owned bythe other person, but it's there
for the provision of that childto live in with their carer.
So it's quite far reaching whatyou can do.
Tamsin Caine (26:32):
Isn't it, crikey?
I didn't know that.
That's really interesting.
What's the situation whereeither the adult or the child is
receiving or receivedcompensation for the reason for
their disability, or charitablefunding is available?
Or I guess the other one thatI've seen a few times is where
there's been a and this isn'talways the kind of resulting
(26:53):
long-term disability, but wherethere's been a pay, a payment
for a critical illness, forexample, so there's been some
form of lump sum payment beenreceived, either for the spouse
or for the disabled adult child.
Nichola Bright (27:09):
Yeah, yeah, so we we've seen this before as
well with the, with the criticalillness.
It's a funny one, isn't it?
Because it's been paid out, butthen they've survived whatever
critical illness it was.
Is that the kind of situationyou were thinking of?
Yeah, yeah well, I guessthere's.
Tamsin Caine (27:25):
Yeah, it's sort of in the pot, but should it be in
the pot, or should it?
Nichola Bright (27:29):
yeah, critical illness I'll talk about
separately.
I think it's a bit more.
It's a bit, it's slightlydifferent, because it's probably
not won't have been paid outfor care needs.
It will have been paid outbecause, sadly, that person may
pass away and they only pay outwhen it's really serious, don't
they?
The critical illness policy, sosomething dramatic must have
happened.
For but it does happen.
(27:51):
I've seen it before where theperson you know thankfully
survives their illness.
But if we look at compensationfor now, when, if a person's
received compensation becausethey've had an accident, say
they've had a bad car accidentand it's impacted on their daily
life or they've, you know,let's give an example of someone
(28:11):
that's got really serious backinjuries and therefore,
struggling to walk, has neededspinal surgery, that kind of
thing which sadly is reallycommon when car accidents happen
.
So they'll get compensation forthat and that money is
therefore assumed to beearmarked for their care and it
should be and usually isearmarked for their care in a,
(28:32):
in the context of a courtlooking at a case and because
it's been an.
So they've been through aprobably quite a legal battle to
get that compensation and it'sbeen independently assessed
already as that's what they needfor their care.
You know my husband's apersonal injury barrister and
I've seen the schedules he hasto do and he you know he's very,
very meticulous in terms ofwhat is needed for their care
(28:53):
for the rest of their life.
So to tap into that money wouldbe, would be, would be wrong
really morally, and I think thecourt recognized that.
So when you have gotcompensation, it's you.
There's usually a very, verystrong argument that's ring
fenced and not touched as partof the split.
It can be taken into account inthe sense well, you've got that
money and that money covers youfor an adaptive property which
(29:16):
can help the other side becausethey don't need to put the hand
in their pocket and buy them aproperty or not necessarily buy
them one, but the assets don'tneed to shift too much.
But there's no, I would saythere's no argument for a spouse
who's not received thecompensation to say, well, I
want 50% of that.
That wouldn't happen.
The court will look at it asmeeting their needs and
(29:38):
therefore it should be earmarkedfor that.
Same goes if you have, like, amilitary charity providing
funding to make life easier fora disabled service person,
there's a strong argument thatthat charity funding should be
reinfenced and protected.
On divorce, it can be takeninto account as a resource so it
helps in the sense of, well,that person doesn't have, um,
the need for maintenance as muchperhaps that they would if that
(30:00):
money wasn't there, but there'sit's.
It'd be very difficult to tapinto that money and to be able
to share that in a divorce.
Yeah, yeah no, that makes senseand then with the critical
illness policy.
If the person's fully recoveredand they've had their critical
illness payment paid out andthey've fully recovered and it's
therefore not needed, thenthere's more of an argument for
(30:23):
that to be shared or taken intoaccount as part of the overall
settlement.
Definitely the the.
It's quite different fromcompensation in the sense that
person's disabled for life.
They're going to need thatmoney.
If someone's, you know, made amiraculous recovery and has got
this critical illness payout butthey're not going to need that
money for care, there's more ofan argument from the other
side's point of view to say thatshould be at least not shared
(30:46):
50-50, I wouldn't say but sharedin that it will take into
account as part of thesettlement.
Tamsin Caine (30:50):
Okay, no, fair enough.
It's a difficult one, thatisn't it?
Because you kind of feel well,if somebody's been through a
critical illness and survived,you kind of feel like it feels
like it ought to be.
Nichola Bright (31:03):
It's a lot of timing as well, you know, if
they, if they were paid outafter separation.
There's more of an argument forit to be kept back, if there's.
If it's been paid out duringthe marriage they were still in
a relationship.
They kind of utilized it a bitand shared in it and
intermingled it with maritalfunds.
There's much more of anargument for it to be shared as
part of the asset split.
So it really depends when itwas received whether it is at
(31:27):
all needed for care at all.
If someone's left with anylasting um illness from the
illness they they got over, um,yeah, it's a difficult one.
It's a difficult one but it'sthere's.
I'd say it's less clear-cutthan the compensation,
definitely because you justdon't know if that person's
going to have those long-termneeds if they've recovered fair
enough.
Tamsin Caine (31:46):
No, that makes sense.
If then, in that I'm justthinking the adult, disabled,
adult children situation again,and so quite often they will
receive some payments from thegovernment, support, and so I'm
thinking of pips, for example,um, that that they might receive
(32:07):
through their lifetime, yeah,does that need to go into the
pot as a, as an income andthat's kind of received and
therefore do would you take allof the child's ongoing needs
into consideration, because Iknow there are some cases where,
(32:29):
um, I work with families andthe the pip is classed as
belonging to the child, adultchild, yeah, and pay used to pay
for discretionary spending forthem, and then the kind of
ongoing kind of housing needs,bills, etc.
Food, etc, etc.
(32:50):
And and to an extent, holidays,because it's not that much.
Um, yeah, kind of all in thepot paid for by the, by the
parents, how, like?
How does it depend on whetherhow much money there is in the
first place and how much isavailable?
Nichola Bright (33:06):
Yeah.
So if you had, like aparticularly wealthy family and
there wasn't a need to look atthe PIP as a resource and it was
belonging to the child, sat ina bank account, perhaps being
used for ad hoc spending, youprobably wouldn't need to look
at it.
Understanding, you probablywouldn't need to look at it and
(33:27):
it would depend on this.
So in severe, if you've got aseverely disabled child who
doesn't isn't able to controltheir own bank account, for
example, and that pip is,although it goes into a bank
account, there's a power ofattorney for the parents who
access it and that pip is verymuch used for day-to-day care
and it is used.
It's all used up, you know it'sused every month.
Then what?
(33:47):
What the other side would argueis to say, well, that's an
income resource available to youand that's already paying for
some of the expenses you'velisted and they've got an
argument.
You know that's valid, that.
So therefore, the court wouldwant some disclosure about how
much money is being used fromthe pip towards the expenditure.
But in a case where you you'vegot, you know, two wealthy
parents, for example, and thatthat pip is perhaps being used,
(34:11):
is being built up in an account,was perhaps being used by the
adult disabled child to you know, pay for things online or go
out with their friends every nowand again, then it's there's
less of an argument for that tobe taken into account because
really it's not being accessedby that parent.
Yeah, but the other side aregoing to jump up and down about
that and say, well, it's, it'sfor the, it's for the care needs
(34:33):
and therefore he's knocking offthis income schedule.
You, this budget, you've putdown to the court that you've
written down, so it's.
It depends which side of thecoin you're on, really, but I
think the court would beinterested to know who's getting
it, who's using it and is itall being used?
Um, yeah, to decide really, ifit's, but I think nine times out
(34:53):
of ten it's going to be beingused for care needs and care and
therefore the other side havegot a valid argument to say
that's going to have to come offyour budget, because you can't
say to me you to have to comeoff your budget because you
can't say to me you need twothousand pound a month when
actually you're already gettingsix hundred to pay for some of
this stuff.
I mean, I don't know what theexact figures are.
I know that the higher rate,the um pip, is obviously more if
(35:18):
you've got the mobility element, but it's, they're not massive
amounts of money.
You know every four weeksthey're not.
I wouldn't even say it was overa thousand pounds.
So yeah, it's going to go toplay a part.
Yeah, yeah, yeah.
Tamsin Caine (35:32):
OK, wonderful, you'll be amazed to hear we're
coming to the end of our time.
Nichola Bright (35:38):
I know it goes so quick.
Tamsin Caine (35:40):
It really does it really does?
Um, before we go, is thereanything that that you want to
add or anything that you feelthat I should have asked?
Nichola Bright (35:51):
you about that.
We haven't talked about, um.
I think we've covered most,most issues, really.
It's it is.
.
.
The problem with family law isthat there is such a wide, a
wide discretion when you have acourt involved that it's really
difficult for us to advise inany certainty exactly what might
happen.
We can say what the range ofoutcomes might be, but with
(36:15):
cases being so different anddiffering needs of each child or
perhaps you've got a disabledspouse and their needs we can
present the case as best we canand then ultimately, if you end
up in court, it's up to it's upto a judge.
But these are sort of generalpointers in terms of the court
are going to take.
They're not going to ignoredisability, they're not going to
(36:35):
ignore needs, they're not goingto ignore care needs and
they're certainly not going toignore the needs of a disabled
adult child.
So I hope that listeners cantake comfort in that if they are
thinking about separating andhave these issues in their
family, um, so but yeah,obviously, if they ever want to
speak to anyone about it, we doa free consultation.
We can speak to someone on thephone for half an hour and give
(36:56):
them some pointers, um, beforethey even make a decision as to
what to do.
Tamsin Caine (37:01):
Some people just really feel a bit trapped in
these situations yeah,absolutely, um, and nicola's
details will be in the shownotes.
So if you need to reach out toher because this is you, um, or
you know, if you're in asituation where you're trying to
negotiate um a settlement andand this is your family and
(37:21):
you're struggling to getanywhere, please do reach out to
nicola, because I'm sure she'dbe delighted to hear from you.
It just remains for me to thankyou for joining us today.
I think that was massivelyuseful.
I know lots of people who willreally benefit from listening to
this episode.
Thank you for listening todayand if you have felt that this
(37:41):
was useful, please do give us afive star rating, because that
helps us get the podcast out tomore and more people who need us
.
Speaker 3 (37:49):
Okay, many thanks, thank you hi, and I hope you
enjoyed that episode of thesmart divorce podcast.
If you would like to get intouch, please have a look in the
show notes for our details orgo onto the website,
wwwsmartdivorcecouk.
(38:09):
Also, if you are listening onApple Podcasts or on Spotify and
you wouldn't mind leaving us alovely five-star review, that
would be fantastic.
I know that lots of ourlisteners are finding this is
incredibly helpful in theirjourney through separation,
divorce and dissolving a civilpartnership.
(38:30):
Also, if you would like somefurther support, we do have a
Facebook group now.
It's called Separation, divorceand Dissolution UK.
Please do go on to Facebook,search up the group and we'd be
delighted to have you join us.
The one thing I would say is doplease answer their membership
(38:51):
questions.
Okay, have a great day and takecare.
Hello and welcome to today's episode of the Smart
Divorce Podcast.
We've got another specialepisode for you today and we are
going to be talking about whathappens with financial
settlements where either thespouse or one of the children
has extra needs, has adisability or some other form of
(00:30):
additional needs, meaning thatspouse working is very difficult
and there are also ongoingresponsibilities, caring
responsibilities throughout thespouse's life.
So I am joined to talk aboutthis fascinating subject which
comes up all the time in thework that I do, by the wonderful
(00:52):
Nichola Bright from Myersons.
Hi, Nichola, how are you doing?
I'm fine.
Thank you for that lovelyintroduction.
No problem, I'm going to ask youto tell us a bit about you .
Nichola Bright (01:05):
They will live on separation, or perhaps the
(01:27):
amount of contact they will havewith each parent.
Um, I also deal with issuessurrounding surrogacy and
fertility law, which falls underthe family law umbrella.
I assist people with prenuptialagreements and postnuptial
agreements, and I also help withmore specialized things such as
(01:50):
farming divorces or divorceswhere there is a farm involved.
It's quite vast really in termsof I pretty much do all family
law.
The only thing we don't coverin our department is if there's
an unmarried couple who are indispute about what to do with
their property.
It falls under civil law andtherefore we have a separate
(02:11):
team at Myerson who deal withthat.
But everything else to do withthe family we will assist with,
and really it's about family.
Breakdown is the main source ofwork in terms of divorcing
people.
Getting them back to ahopefully stable financial
position and assisting them withtheir finances is the majority
(02:31):
of the work I do, and withinthat obviously there's lots of
variations disabled children andadults being one of them.
Tamsin Caine (02:38):
Absolutely, and you've worked in family law for
quite some time.
I mean people who can see youbecause they're watching on the
YouTube channel will know youdon't look like you're old
enough to have been doing thisfor some time.
Nichola Bright (02:51):
Thanks, well 15 years, I think this year, or 16
years this year.
I've been working in family andI've been at Myerson for 11
years, so I've been here a longtime.
Part of the furniture now basedin the centre of Altrincham.
So I think because I've beenhere for a while, you get to
know lots of people locally and,yeah, it's just a lovely place
(03:15):
to work in Altrincham and atMyerson as well.
So I'm very lucky.
Tamsin Caine (03:19):
Absolutely, it certainly is.
The cracking firm and yourfamily team there are all
fabulous, thank you.
So we're going to talk today andthis situation comes up a lot
in questions from clients andactually seems to be coming up
more and more.
So if we start off with thesituation with children so
(03:46):
children who have disabilitiesand these can be things such and
when I say it's coming up moreand more, I think because what
I'm finding from clients is alot of children with additional
needs, children with additionalneeds such as neurodiversity,
(04:11):
autism, adhd, some issues whichin some cases, depending on
where on the spectrum they are,they can happily hold down a
full-time job or a part-time job, but in some cases, working for
these children is not apossibility and even living
independently in the future isnot a possibility.
So I think we're looking at asituation where certainly one of
(04:34):
the spouses is going to havecaring responsibilities for the
rest of their lives and ispotentially going to need to put
something in place for thosedependent children, but after
they're not able to care forthem themselves any longer.
So let's start with um, withcontact, so how where the child
(04:55):
might live, um, and and wholooks after them, and so on,
Nichola Bright (05:02):
So most of the time when first separate, they
can sit down and agree somethingbetween themselves and it's a
kitchen table discussion andthey both parents are in the
right headspace to decide what'sbest for that child or the
children.
They may have a sibling groupwith the same difficulty.
(05:24):
So autism doesn't run infamilies, for example.
So you may have two or threechildren with similar needs or
or the same diagnosis but verydiffering needs.
But each family is so differentit's hard to really go into
that in any other detail, otherthan everyone knows that every
family is unique.
So if the parents can sit downand agree something that they
know is right for that child,then that that is going to be
(05:45):
the absolute best way to dealwith it.
And we don't see those cases.
They only come to us if theycan't reach an agreement.
So there are lots of familieswho manage this without
solicitors and the courtsbecoming involved.
I am really struggling.
My ex doesn't seem to get it,doesn't understand that.
(06:05):
You know, let's call this childSarah.
You know Sarah has thesedifficulties and she simply
doesn't like change.
And he doesn't understand that.
He thinks she's going to adaptto a 50-50 arrangement.
Those kind of conversationsthis is quite a common problem.
We get where one parent justdoesn't seem to understand
perhaps because they've not beenthe primary caregiver, or don't
(06:26):
want to really understand it,because it means that they won't
be seeing the child as much,sadly, that there may then be a
dispute about where this childshall live or how much contact
they should have with the otherparents.
So we would initially send themoff to a mediator where they
could hopefully sit down with amediator to try and try and
reach an agreement, or, you know, looking at all the needs of
(06:47):
the children in the in theparticular case.
Now, if that's not possible,some cases end up going to
solicitors and then courts as alast, you know, last resort, um.
So when I'm talking now aboutwhat the court look at, I'm
really talking about those casesthat end up before a judge, um,
so that you, your listeners,know what the courts will look
(07:08):
at when you're dealing withchildren with disabilities and
special educational needs.
So when they make any decision,when a court makes any decision
about a child's care or thecontact they have with the other
parent or who they're going tolive with, the welfare principle
, which means that the core hasto give paramount consideration.
So that's above everything elseto the welfare of the child.
(07:31):
So in this assessment you'relooking at the child as a unique
being, as part of a siblinggroup potentially, and looking
at their specific care needs,which are going to differ from
case to case.
Like you said, some childrenwon't need much handholding but
do have additional needs Saythey have some support at school
all the way down to physicaldisabilities where they are
(07:55):
reliant on wheelchairs and care,or severe autism, perhaps where
they're non-verbal, so reallydiffering extremes.
Autism, perhaps where they'renon-verbal, so really differing
extremes.
And so there's no uniformapproach as to assessing what's
in the best interests or what'sum, what's going to satisfy this
paramount consideration test.
But the judge has to considerthe disabilities as part of that
(08:18):
, so it can result in differentdecisions by the court for
different sibling groups.
So you may have decisions bythe court for different sibling
groups, so you may have.
It may be that you have, youhave two siblings, one, both on
the autistic spectrum.
One is, is um, at a you know, amore severe stage or
presentation than the other.
And it may be that that childhas less contact or has a
(08:40):
different contact arrangementthan their sibling.
So that that can happen.
I had a case where there wasthree children, all with quite
severe autism and Asperger's,and two of them expressed
verbally.
They wanted to see dad and didsee dad regularly, and then the
youngest one just couldn't copewith any change, was non-verbal.
So there was a differentarrangement for him for now,
(09:02):
which then changed in the future.
So very, very different.
So the court will look at whenthey're looking at a live with
argument like who the childshall live with, the court are
going to look at to what extenteach parent is capable of
meeting the children's needs todecide whether what would be in
the child's best interest.
So courts have really wideranging powers as well, and they
can even make decisions aboutwhether a child receives a
(09:23):
particular medical treatment ornot if there was a dispute about
that.
So it really is a balancingexercise and it may well be that
most of the time the court aregoing to need assistance from
CAFCAS on this, who who work forthe court as an advisory
service, who will go out andmeet the parents and meet the
children so that the parents canbe satisfied that everything's
(09:45):
being looked at in a lot ofdetail, rather than a judge just
sat there only with informationbefore him or her and then
making a decision.
Actually, there's someone onthe ground going to see the
family and they may see thatfamily several times to decide
what to advise the court, andthey will then advise the court
what's best for the childrenWonderful.
Tamsin Caine (10:02):
Crikey, it's a lot .
It's a lot, isn't it?
So talk to me about CAFCAS,just very briefly.
What are they?
Who are they?
What does it mean?
What do they do?
Nichola Bright (10:16):
So CAFCAS work for the court system, for the
justice system, and they are anorganisation usually of
ex-social workers.
Workers actually people in inthe social work field often go
and work for kafkas or they orthey could be trained
specifically by kafkas to dothis work.
So they will.
They will write to the parentson an app.
(10:38):
If someone makes an applicationto the court, the first thing
they do is write to the parentsand carry out what's called a
safeguarding check.
So they do things like policechecks, social services checks
and have a really detaileddiscussion with each parent
before the case even goes tocourt to decide what the issues
are and whether they can advisethe court at an early stage
whether actually this needs alot of investigation, this needs
(10:58):
more work.
So when you've got a case wherethere are children with
disabilities and special needs,the likelihood is at that very
early stage CAFCAS will say tothe court we need to do a full
assessment here, we need toprepare a full report of
recommendations and it's goingto take three to four months to
complete because they will meetthe family several times and
then prepare reports, orsometimes addendum reports and
(11:19):
further reports, so that they'reinvolved with the family from
start to finish and they're areally great organisation and
the court wouldn't be able tofunction without them, because
there's no one, like I say, onthe ground actually advising the
court what's in the bestinterest of these children.
Tamsin Caine (11:34):
Yeah, no, they sound ace.
That sounds like a great plan.
And so then we move on to thefinancial situation, because
where you've got, where you'vegot families where the children
don't have additional needs,essentially the the recognition
(11:55):
is that, although I know frompersonal experience, this isn't
actually the real case in reallife.
But, um, children in class,there's not children anymore,
and not needing maintenance etc.
From from the end of their alevel year.
So age 18, yes, as I say, inreality, I'm sure most parents
(12:17):
who have children over the ageof 18 know that they're still
going to get financiallyresponsible they certainly can
do, but where you've gotchildren with additional needs,
with disabilities, with specialeducational needs, that that
continues and can well continue,as I said before, throughout
their lifetime.
So how do financial settlementsdiffer for those families?
Nichola Bright (12:45):
Yeah, so disability of a child and an
adult child, so a child beyondthe age of 18 who's still at
home either by virtue ofdisability or not, so that can
influence what is fair andreasonable in two ways so it can
affect the adult themselves andit can affect the child
(13:06):
directly.
So the the legal position is, Imean, I say, straightforward.
It doesn't soundstraightforward but essentially
the court's going to look at howthat disability affects, in
short, the primary caregiver, sothe spouse who cares for the
(13:27):
child most of the time, how it'sgoing to affect their financial
position.
We can assume it's going tohave a negative impact on their
financial position.
So if we just scale back a bitand look at what the, what the
law provides for a disabledspouse, we can kind of work from
there.
So if you, within within thelegal framework that we we use
(13:52):
within this area of law it'scalled the Matrimonial Causes
Act that we look at and there'sa really important part of that
act called Section 25, which hasa list of factors that the
court must consider whendeciding how to divide finances
and how to divide the assets ofa marriage finances and how to
(14:13):
divide the assets of a marriage.
And so that health issues arenot overlooked.
The court have to, as part ofthat process, have to look at
one of the factors, which is anyphysical or mental disability
of either of the parties of themarriage.
So that covers your spouses.
So the focus there is thereforeon the disabled person's
financial needs and their incomeand earning capacity and
(14:34):
looking at the financial impactof the health issues.
And in cases where you've got adisabled adult divorcing,
things like a contingency fundmight be needed for care needs
or ongoing medical and ongoingperiodical payments for ongoing
medical needs medical um,ongoing periodical payments for
(14:54):
ongoing medical needs.
So they will, they will havesome benefits.
Hopefully the benefit systemwill provide some support, but
the court will look at any unmetneed where the gap needs
bridging and often that meansthat more money is needed from
the other party, if it, if itallows.
So there can be an unfairdivision of assets.
What we say unfair, we, when Isay unfair, I mean not 50 50,
because that the other personsimply wouldn't be able to
(15:16):
survive without it and wouldn'tbe able to meet their own, their
own needs.
And when you look at disabledchildren of those of those
spouses or disabled adultchildren, there's nothing
specific in legislation relatingto a disabled child, but the
actual section 25 that I'mreferred to has an overarching
(15:39):
provision at the top which saysthe court's first consideration
is given to any welfare of anyminor child under 18.
So that covers your children.
But then what if the childrenare adult children that are
disabled?
And that's where things are abit more blurry.
Um, but this is where it linksback to the spouse's needs,
(16:03):
because they are going to havecaring responsibilities and
therefore their income andearning capacity is going to be
very different from perhaps theother spouse because of these
caring responsibilities.
So that's really the startingpoint is to look at the
financial impact on that parentspouse who's looking after the
adult disabled child.
You know this could be alifetime, they could be looking
(16:24):
after them for their whole lifeand then then then you need to
look at, like you said before,what happens when they die.
Where do the children?
There needs to be provision forthose children to be cared for
when they're in their 40s, 50s,60s.
So all of those factors play apart.
And they also look at thingslike adapted homes, specialised
equipment, and all of that paysa part in the share of the
(16:46):
assets of a case.
So you are going to end up with, most likely, a case where more
of the assets are going to begoing one way than the other to
really meet those needs.
Um, and to not do that would bewould leave someone financially
destitute.
So I've got you know, everycase is different, like I say,
but it would be very.
I'd find it very difficult tosee a case where someone will be
left without enough money tokeep their adapted home, for
(17:08):
example, or pay for a disabledadult's child's medication, or
their electricity bill could behuge because they're in the
house all the time, becauseperhaps they're immobile.
Tamsin Caine (17:19):
So there's lots of factors, but you know it's huge
expense to one party usuallyyeah, absolutely, because the if
you're looking at your, yourneeds as an individual, so once
the children are grown up andassumed to have to be
financially independent, yourcosts are going to be just for
(17:41):
for one adult.
Your needs are just going to befor one adult.
Yeah, and it's.
It's feasible to see you movingdown.
You know, downsizing to a smallhome, for example, those
options aren't available wherethere are caring needs, because
you're actually still paying for.
You know, even simple thingslike you don't get the single
adult discount on council taxbecause there's two adults there
(18:04):
.
So all of those things, all ofyour costs, your food costs,
your electricity costs, your gascosts, I mean they're not going
to double, but they are goingto be higher if there are two
adults.
Nichola Bright (18:19):
this child's going to is going to stay there,
they're going to stay thatthey're never going to drop.
Like you can have that optionin other cases where the
children go and leave the home,go off to uni, potentially the
options are downsized andtherefore, as you, she feels you
just haven't got that option,you haven't got that freedom at
all.
Tamsin Caine (18:35):
Yeah no, definitely.
Do you tend to find that caseswhere these issues are um, are
kind of in the mix, settle outof court or do they cop?
Do they often end up requiringa court to make a ?
Nichola Bright (18:56):
It's difficult for me to answer that because I
only see, like the worst ones,which because they only really
go to solicitors when they can'tagree I mean, we, if we get
them as new cases, obviously wealways try and settle them out
of court.
I'd probably say it's about50-50, in terms of which ones
settle at mediation and a bit ofnegotiation through the
(19:16):
solicitor and which ones have togo all the way to a court and a
decision by a judge, whetherthat's to do with child contact
or whether that's to do withfinancial asset split.
Yeah, I'd probably say it'sabout 50-50.
It's really difficult when theygo to court because it costs a
loter's allowance and they can'twork.
So it may well be that they doget legal aid if there's been
(19:56):
domestic abuse or some form ofabuse within the relationship.
So it's really difficult Ifthey do end up going to court.
That's another financial factorto take into account, because
they can say to the court well,this is how much I've spent on
legal fees, and then there hasto be allowance for that as well
, and whether they're dividedbetween the two spouses or not,
there's there's all sorts ofthings to take into account when
(20:19):
you have to make an applicationto court and some people rely
on litigation funding to fundtheir legal fees.
So they'll end up applying to athird party lender who'll fund
their legal fees that they thenpay back at the end, which is
like a liability, obviously adebt they'll have to pay, and
I've seen cases where the otherspouse has been ordered to pay
those fees because there simplyisn't the money available from
(20:42):
the spouse with the disabledchild, disabled adult child or
disabled child to pay it.
So it's, we try and keep themout of court because of all
these extra considerations.
Mainly there's a lack of income, lack of earning capacity
Really tough cases to deal with.
Tamsin Caine (21:00):
So if you've got a primary carer or primary caring
parent who the child lives withdisabled adult child, let's be
specific about it.
He lives with them and theylook after.
Let's be specific about it.
He lives with them and theylook after them kind of all the
time and there's little inputfrom the other spouse.
Did the court make provision orfeel that it's reasonable to
(21:25):
have as a need the respite carefor the caring spouse?
Nichola Bright (21:30):
Yeah, they would consider that as a very
important need.
So when you prepare your casefor court you have to list for
the court a really detailedmonthly outgoing schedule which
covers all your financial needs.
So respite care should be onthat schedule and it it's then
(21:51):
look at, looked at as a whole,so say, if your needs let's just
say for argument, say, arethree thousand pound a month and
you get benefits of, say, athousand, there's a gap there of
two thousand and that respitecare would be taken into account
as part of that plugging thegap.
Um, and if the other person canafford to pay maintenance and
you know I'm assuming everyone'sa high earner.
They're not these cases, don't?
(22:11):
You know these cases can bereally difficult.
You could have the other parentearning very little as well.
And therefore you're looking atcan we sell cap?
Can we downsize?
Is it possible to downsize torelease capital for these
ongoing needs?
Um, but yes, it would be takeninto account absolutely.
Respite care, because it'sreally expensive.
There are I mean, I know thatthere are some local authorities
(22:32):
who do provide respite care, um, and don't charge for it, but
you know it's few and farbetween and it's really hard to
get that service.
It's a postcode lotteryabsolutely so.
Tamsin Caine (22:43):
If there is the money in the family, yeah,
respite care should be includedin the ongoing needs, because
and it's not considered as a aslike a big luxury it's
considered as something that's aneed even even holidays are
taken into account as a need.
Nichola Bright (22:59):
It's not that they're considered as a luxury.
You know everyone's entitled toa holiday.
Holidays with a disabled adultchild, if it's possible, are
going to cost more, so it's.
You really have to.
When you're doing these budgets, you really have to think very
carefully and sit down with yourclient.
So I'll sit down with them andgo through everything in detail
and they won't think about thissort of stuff and I'll say you
know how much does respite cost?
(23:19):
How much will a holiday cost?
What's the extra cost fortaking the wheelchair on the
plane or what's the extra costof taking equipment?
And they really need to thinkabout it.
And it's almost like it can belike three pages long of just
all these different, yeah,outgoings, but across the year
you spread and you know holidaysyou don't take every month.
You spread the cost across theyear so you have an average yeah
(23:41):
, so that there's lots to dowhen you get divorced, sadly.
So there is a lot of homeworkfor someone who's going through.
It's really difficult sometimesthere's some, you know to sit
down and think of everything.
So I'll often send them a biglist to jog their memory about
things they might forget to putdown.
Tamsin Caine (23:55):
Yeah, yeah, absolutely.
And as you say when, whenyou're looking at disabled adult
children, that there is more,there is even more.
Or you know, or disabledspouses you know there could be,
I don't know um like a scooterinstead of a wheelchair, because
so that they give, get someindependence, maybe some changes
(24:19):
that need to be adapted to theproperty to enable them to live
there alone rather than if theywere living with the spouse
there.
You know those, those sorts ofthings have all got to be taken
into consideration, don't they?
Yeah, they really do so.
Child maintenance is generally,as we talked about before,
payable to um from one spouse toanother spouse until the child
(24:43):
is 18, or kind of endingrequired schooling.
What's the situation fordisabled adult children?
Is the maintenance payable forthem post 18?
Nichola Bright (24:56):
Yeah.
So if they're post 18, thecourt has the power to go beyond
the typical government regime,which is the child maintenance
service regime which we all knowand love, which ends when the
child finishes A-levels anddoesn't cover anything like
university or anything beyondthat.
So, but where there is adisabled child, the court do
(25:18):
have jurisdiction to go beyondthat CMS that's child
maintenance service regime.
And there's another provisionunder Schedule 1 of the Children
Act, which is a different areaof law that we can look to,
where someone can apply fortop-up maintenance.
So lump sums, open-ended lumpsums, for things like adapted
(25:39):
wheelchairs or adapted equipmentneeded in the home, um, or it
can be anything, or it could befor an adapted car for a child
that can drive but needs anadapted car, um, and also for
housing provision for a disabledchild.
So if this is particularlyhelpful in a case where you've
got unmarried parents, wherethere's no automatic right for
(26:01):
one spouse to provide the otherwith the property or divide
their capital, for example, theschedule one of the children
acts can, where you have adisabled child, you can actually
apply for housing provision fora disabled child.
That house is always owned bythe other person, but it's there
for the provision of that childto live in with their carer.
So it's quite far reaching whatyou can do.
Tamsin Caine (26:32):
Isn't it, crikey?
I didn't know that.
That's really interesting.
What's the situation whereeither the adult or the child is
receiving or receivedcompensation for the reason for
their disability, or charitablefunding is available?
Or I guess the other one thatI've seen a few times is where
there's been a and this isn'talways the kind of resulting
(26:53):
long-term disability, but wherethere's been a pay, a payment
for a critical illness, forexample, so there's been some
form of lump sum payment beenreceived, either for the spouse
or for the disabled adult child.
Nichola Bright (27:09):
Yeah, yeah, so we we've seen this before as
well with the, with the criticalillness.
It's a funny one, isn't it?
Because it's been paid out, butthen they've survived whatever
critical illness it was.
Is that the kind of situationyou were thinking of?
Yeah, yeah well, I guessthere's.
Tamsin Caine (27:25):
Yeah, it's sort of in the pot, but should it be in
the pot, or should it?
Nichola Bright (27:29):
yeah, critical illness I'll talk about
separately.
I think it's a bit more.
It's a bit, it's slightlydifferent, because it's probably
not won't have been paid outfor care needs.
It will have been paid outbecause, sadly, that person may
pass away and they only pay outwhen it's really serious, don't
they?
The critical illness policy, sosomething dramatic must have
happened.
For but it does happen.
(27:51):
I've seen it before where theperson you know thankfully
survives their illness.
But if we look at compensationfor now, when, if a person's
received compensation becausethey've had an accident, say
they've had a bad car accidentand it's impacted on their daily
life or they've, you know,let's give an example of someone
(28:11):
that's got really serious backinjuries and therefore,
struggling to walk, has neededspinal surgery, that kind of
thing which sadly is reallycommon when car accidents happen
.
So they'll get compensation forthat and that money is
therefore assumed to beearmarked for their care and it
should be and usually isearmarked for their care in a,
(28:32):
in the context of a courtlooking at a case and because
it's been an.
So they've been through aprobably quite a legal battle to
get that compensation and it'sbeen independently assessed
already as that's what they needfor their care.
You know my husband's apersonal injury barrister and
I've seen the schedules he hasto do and he you know he's very,
very meticulous in terms ofwhat is needed for their care
(28:53):
for the rest of their life.
So to tap into that money wouldbe, would be, would be wrong
really morally, and I think thecourt recognized that.
So when you have gotcompensation, it's you.
There's usually a very, verystrong argument that's ring
fenced and not touched as partof the split.
It can be taken into account inthe sense well, you've got that
money and that money covers youfor an adaptive property which
(29:16):
can help the other side becausethey don't need to put the hand
in their pocket and buy them aproperty or not necessarily buy
them one, but the assets don'tneed to shift too much.
But there's no, I would saythere's no argument for a spouse
who's not received thecompensation to say, well, I
want 50% of that.
That wouldn't happen.
The court will look at it asmeeting their needs and
(29:38):
therefore it should be earmarkedfor that.
Same goes if you have, like, amilitary charity providing
funding to make life easier fora disabled service person,
there's a strong argument thatthat charity funding should be
reinfenced and protected.
On divorce, it can be takeninto account as a resource so it
helps in the sense of, well,that person doesn't have, um,
the need for maintenance as muchperhaps that they would if that
(30:00):
money wasn't there, but there'sit's.
It'd be very difficult to tapinto that money and to be able
to share that in a divorce.
Yeah, yeah no, that makes senseand then with the critical
illness policy.
If the person's fully recoveredand they've had their critical
illness payment paid out andthey've fully recovered and it's
therefore not needed, thenthere's more of an argument for
(30:23):
that to be shared or taken intoaccount as part of the overall
settlement.
Definitely the the.
It's quite different fromcompensation in the sense that
person's disabled for life.
They're going to need thatmoney.
If someone's, you know, made amiraculous recovery and has got
this critical illness payout butthey're not going to need that
money for care, there's more ofan argument from the other
side's point of view to say thatshould be at least not shared
(30:46):
50-50, I wouldn't say but sharedin that it will take into
account as part of thesettlement.
Tamsin Caine (30:50):
Okay, no, fair enough.
It's a difficult one, thatisn't it?
Because you kind of feel well,if somebody's been through a
critical illness and survived,you kind of feel like it feels
like it ought to be.
Nichola Bright (31:03):
It's a lot of timing as well, you know, if
they, if they were paid outafter separation.
There's more of an argument forit to be kept back, if there's.
If it's been paid out duringthe marriage they were still in
a relationship.
They kind of utilized it a bitand shared in it and
intermingled it with maritalfunds.
There's much more of anargument for it to be shared as
part of the asset split.
So it really depends when itwas received whether it is at
(31:27):
all needed for care at all.
If someone's left with anylasting um illness from the
illness they they got over, um,yeah, it's a difficult one.
It's a difficult one but it'sthere's.
I'd say it's less clear-cutthan the compensation,
definitely because you justdon't know if that person's
going to have those long-termneeds if they've recovered fair
enough.
Tamsin Caine (31:46):
No, that makes sense.
If then, in that I'm justthinking the adult, disabled,
adult children situation again,and so quite often they will
receive some payments from thegovernment, support, and so I'm
thinking of pips, for example,um, that that they might receive
(32:07):
through their lifetime, yeah,does that need to go into the
pot as a, as an income andthat's kind of received and
therefore do would you take allof the child's ongoing needs
into consideration, because Iknow there are some cases where,
(32:29):
um, I work with families andthe the pip is classed as
belonging to the child, adultchild, yeah, and pay used to pay
for discretionary spending forthem, and then the kind of
ongoing kind of housing needs,bills, etc.
Food, etc, etc.
(32:50):
And and to an extent, holidays,because it's not that much.
Um, yeah, kind of all in thepot paid for by the, by the
parents, how, like?
How does it depend on whetherhow much money there is in the
first place and how much isavailable?
Nichola Bright (33:06):
Yeah.
So if you had, like aparticularly wealthy family and
there wasn't a need to look atthe PIP as a resource and it was
belonging to the child, sat ina bank account, perhaps being
used for ad hoc spending, youprobably wouldn't need to look
at it.
Understanding, you probablywouldn't need to look at it and
(33:27):
it would depend on this.
So in severe, if you've got aseverely disabled child who
doesn't isn't able to controltheir own bank account, for
example, and that pip is,although it goes into a bank
account, there's a power ofattorney for the parents who
access it and that pip is verymuch used for day-to-day care
and it is used.
It's all used up, you know it'sused every month.
Then what?
(33:47):
What the other side would argueis to say, well, that's an
income resource available to youand that's already paying for
some of the expenses you'velisted and they've got an
argument.
You know that's valid, that.
So therefore, the court wouldwant some disclosure about how
much money is being used fromthe pip towards the expenditure.
But in a case where you you'vegot, you know, two wealthy
parents, for example, and thatthat pip is perhaps being used,
(34:11):
is being built up in an account,was perhaps being used by the
adult disabled child to you know, pay for things online or go
out with their friends every nowand again, then it's there's
less of an argument for that tobe taken into account because
really it's not being accessedby that parent.
Yeah, but the other side aregoing to jump up and down about
that and say, well, it's, it'sfor the, it's for the care needs
(34:33):
and therefore he's knocking offthis income schedule.
You, this budget, you've putdown to the court that you've
written down, so it's.
It depends which side of thecoin you're on, really, but I
think the court would beinterested to know who's getting
it, who's using it and is itall being used?
Um, yeah, to decide really, ifit's, but I think nine times out
(34:53):
of ten it's going to be beingused for care needs and care and
therefore the other side havegot a valid argument to say
that's going to have to come offyour budget, because you can't
say to me you to have to comeoff your budget because you
can't say to me you need twothousand pound a month when
actually you're already gettingsix hundred to pay for some of
this stuff.
I mean, I don't know what theexact figures are.
I know that the higher rate,the um pip, is obviously more if
(35:18):
you've got the mobility element, but it's, they're not massive
amounts of money.
You know every four weeksthey're not.
I wouldn't even say it was overa thousand pounds.
So yeah, it's going to go toplay a part.
Yeah, yeah, yeah.
Tamsin Caine (35:32):
OK, wonderful, you'll be amazed to hear we're
coming to the end of our time.
Nichola Bright (35:38):
I know it goes so quick.
Tamsin Caine (35:40):
It really does it really does?
Um, before we go, is thereanything that that you want to
add or anything that you feelthat I should have asked?
Nichola Bright (35:51):
you about that.
We haven't talked about, um.
I think we've covered most,most issues, really.
It's it is.
.
.
The problem with family law isthat there is such a wide, a
wide discretion when you have acourt involved that it's really
difficult for us to advise inany certainty exactly what might
happen.
We can say what the range ofoutcomes might be, but with
(36:15):
cases being so different anddiffering needs of each child or
perhaps you've got a disabledspouse and their needs we can
present the case as best we canand then ultimately, if you end
up in court, it's up to it's upto a judge.
But these are sort of generalpointers in terms of the court
are going to take.
They're not going to ignoredisability, they're not going to
(36:35):
ignore needs, they're not goingto ignore care needs and
they're certainly not going toignore the needs of a disabled
adult child.
So I hope that listeners cantake comfort in that if they are
thinking about separating andhave these issues in their
family, um, so but yeah,obviously, if they ever want to
speak to anyone about it, we doa free consultation.
We can speak to someone on thephone for half an hour and give
(36:56):
them some pointers, um, beforethey even make a decision as to
what to do.
Tamsin Caine (37:01):
Some people just really feel a bit trapped in
these situations yeah,absolutely, um, and nicola's
details will be in the shownotes.
So if you need to reach out toher because this is you, um, or
you know, if you're in asituation where you're trying to
negotiate um a settlement andand this is your family and
(37:21):
you're struggling to getanywhere, please do reach out to
nicola, because I'm sure she'dbe delighted to hear from you.
It just remains for me to thankyou for joining us today.
I think that was massivelyuseful.
I know lots of people who willreally benefit from listening to
this episode.
Thank you for listening todayand if you have felt that this
(37:41):
was useful, please do give us afive star rating, because that
helps us get the podcast out tomore and more people who need us
.
Speaker 3 (37:49):
Okay, many thanks, thank you hi, and I hope you
enjoyed that episode of thesmart divorce podcast.
If you would like to get intouch, please have a look in the
show notes for our details orgo onto the website,
wwwsmartdivorcecouk.
(38:09):
Also, if you are listening onApple Podcasts or on Spotify and
you wouldn't mind leaving us alovely five-star review, that
would be fantastic.
I know that lots of ourlisteners are finding this is
incredibly helpful in theirjourney through separation,
divorce and dissolving a civilpartnership.
(38:30):
Also, if you would like somefurther support, we do have a
Facebook group now.
It's called Separation, divorceand Dissolution UK.
Please do go on to Facebook,search up the group and we'd be
delighted to have you join us.
The one thing I would say is doplease answer their membership
(38:51):
questions.
Okay, have a great day and takecare.
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