Protecting brain injury compensation in divorce proceedings
Research shows brain injuries can strain relationships, leading to some couples facing divorce or separation. While not all relationships end due to injury, and many endure in the most challenging circumstances, it’s essential to consider how compensation awards might be affected in such cases.
The bottom line is that personal injury awards can’t be ringfenced from divorce proceedings. However, there are practical steps brain injury survivors can take to try and protect part of their compensation.
Cognitive issues, memory loss, fatigue, behavioural and psychological issues and personality changes are all common following a severe brain injury. Someone who was previously calm may become irritable, while a once cautious person may become impulsive. A brain injury survivor might not be aware of how their injury affects them but the impact of these changes on their relationships with those around them can often be significant.
Support networks like Headway – the brain injury association, play a crucial role in helping survivors and their families navigate these changes. They highlight challenges partners may face, including communication issues, changes to roles and responsibilities, loss of intimacy and feelings of disconnection.
In my experience, as an associate solicitor in the Adult Brain Injury Team at Bolt Burdon Kemp, some of our clients do sadly experience problems in their relationships following their injury. As personal injury lawyers, we have to consider what might happen if our client’s marriage or civil partnership breaks down and there is a sum of compensation involved.
Compensation in personal injury claims aims to restore the injured person’s life as far as possible, for example, by replacing lost earnings and funding ongoing and lifelong professional care and support, treatment and therapies. However, these awards are not automatically protected in divorce proceedings.
When considering how to split the family assets, including any compensation award, the family court will consider various factors, including the type and severity of the injury, the needs of both partners and the intended use of the compensation. But there is no certainty as to how much compensation will remain for the injured person. A brain injury survivor may be vulnerable and have considerable lifelong care and support needs, so it’s important they have the financial resources to meet those needs.
Nuptial agreements
To safeguard compensation, individuals can explore nuptial agreements. These legal documents allow couples to decide how their assets, including compensation, will be divided in case of divorce or separation or if they should have their civil partnership dissolved. While not legally binding, family courts often respect these agreements if entered into willingly and with full understanding.
Where our clients in the Adult Brain Injury Team at Bolt Burdon Kemp are married or are in civil partnerships and are likely to obtain a sum of compensation, we recommend they seek independent advice from a family law solicitor on preparing a nuptial agreement.
We can provide the family law solicitor with a breakdown of the level of personal injury compensation being sought so they can understand what parts of the compensation will be essential to meet the client’s needs both now and in the future, including things such as accommodation, care and rehabilitation.
This could then serve as the starting point for an agreement as to how the compensation could be fairly shared in the event of the client’s marriage or civil partnership breakdown.
The cost of seeking legal advice from a family law solicitor and a nuptial agreement is often far less expensive than going through protracted divorce negotiations or a family court hearing and, as nuptial agreements are essential in many personal injury claims, we aim to recover these legal costs from the defendants in our clients’ claims.
While discussing such legal matters may seem uncomfortable, early advice from a family law solicitor can provide clarity and financial security.
In conclusion, it is vital to consider the potential impact of relationship breakdown on personal injury compensation. Seeking legal advice at an early stage and exploring options like nuptial agreements can provide peace of mind that an injured individual will always have the financial means to meet their essential care and support needs.
