Considering health needs in a financial settlement after divorce

If you or someone in your family is living with a serious or long-term health condition, going through a divorce can feel even heavier. A physical or mental health condition, whether it affects you, your former partner or a child of the family, can have a real bearing on your divorce financial settlement, from how income is shared to how a pension is divided.

The good news is that the law recognises this. Health is one of the factors a court must weigh up when deciding what counts as a fair financial settlement after divorce, and there's a well-established process for making sure your circumstances, or those of a family member, are properly reflected.

In this article, we'll look at how the courts approach health needs in a divorce financial settlement, the medical evidence you'll need, and the impact health can have on maintenance, housing, pensions and state benefits. Our family team advises clients across York, Selby, Malton and Pickering, so if you'd like to talk your situation through, we're ready whenever you are.

What the law says: Section 25 of the Matrimonial Causes Act 1973

When you go through a divorce, the court weighs up a number of factors before deciding how to divide your finances.

These come from Section 25 of the Matrimonial Causes Act 1973, the Act that still governs financial settlements on divorce in England and Wales, and they include your income and earning capacity, your financial needs, your standard of living during the marriage, your age, the length of the marriage, and your contributions to the family.

One of the Section 25 factors is expressly ‘any physical or mental disability of either of the parties to the marriage’. This means that if you or your former partner has a disability, a chronic illness or a serious long-term condition, the court is required to take it into account.

The court's overriding aim is fairness, and where there are children of the family under 18, their welfare is its first consideration. Health rarely stands alone as a factor. It usually interacts with several of the others, affecting your earning capacity, your financial needs and the standard of living you can realistically expect to maintain.

Types of health issues the court will take into account

The court doesn't work from a fixed list of qualifying conditions. Physical disabilities, chronic illnesses such as multiple sclerosis, Parkinson's disease, cancer or long Covid, degenerative conditions, and mental health conditions including depression, PTSD or bipolar disorder can all be relevant, as can neurodivergent conditions and any illness linked to a reduced life expectancy.

What matters most isn't the diagnosis itself, but its practical impact: how it affects your ability to earn, your day to day costs, and your outlook for the future.

This is particularly important when it comes to proving mental illness in divorce proceedings, where the court will want to see how a condition affects your daily functioning and earning capacity, not simply the diagnosis on its own.

Medical evidence: what you'll need and how to get it

If health is going to be a significant factor in your financial settlement, you'll usually need more than a general description of how you're feeling. Courts expect proper medical evidence, typically a report from your GP or treating consultant setting out the diagnosis, prognosis and impact.

Where future care needs are relevant, you may also need an occupational therapy report covering care and housing needs, or an occupational health assessment addressing your ability to work. In some cases, the court will direct that a single joint expert is instructed, so you and your former partner are relying on the same evidence rather than competing reports.

Vague statements about ill health, without supporting documentation, are unlikely to carry much weight. The evidence needs to be proportionate to the issue: a short-term condition won't usually need the same level of expert input as a serious, long-term or degenerative illness.

Impact on earning capacity and future financial needs

If you're dealing with a long-term disability and divorce at the same time, your earning capacity is often the biggest factor in how your case is approached. Ill health can reduce it in several ways: it might force you to reduce your hours, change your role, or stop working altogether, sometimes years earlier than you'd planned. It can also increase your outgoings, through medication, therapy, care or adapted transport.

The court will look at the balance between what your former partner can reasonably earn and what you can, factoring in any reduction caused by your health. Employment or medico-legal evidence often helps demonstrate this clearly, rather than leaving it to assumption.

Impact on spousal maintenance and clean break orders

Spousal maintenance isn't automatic. Whether it's ordered, and for how long, depends on your financial circumstances and the Section 25 factors as a whole. Where a health condition limits your ability to support yourself financially, maintenance is more likely to be considered appropriate.

The court has a duty to consider a clean break wherever possible, meaning a financial settlement that ends the ongoing financial ties between you and your former partner. Ill health can make a clean break harder to justify: if a serious condition prevents a realistic return to work, longer-term maintenance, or in rare cases a joint lives order with no fixed end date, may be more appropriate.

Where the healthier party has enough capital, the court may prefer to compensate for this through a larger lump sum or a bigger share of the property, rather than through ongoing payments. This can suit you both better, since it avoids an open-ended financial relationship after divorce.

These maintenance and capital decisions form part of the wider financial order a divorce court makes, alongside pensions and housing, which we cover next.

Impact on housing and capital provision

A disability or serious illness can increase your housing needs quite significantly: ground floor accommodation, adapted bathrooms, level access, or simply living closer to family or medical services. These needs can justify a larger share of capital, or a different approach to how the family home is dealt with.

In some cases, a Mesher or Martin order (arrangements that let one of you stay in the family home for a set period, or until a defined event, before it's sold or transferred) may suit an adapted housing divorce settlement better than an immediate sale.

It's also worth remembering that the market value of an adapted property doesn't always reflect what it actually costs to adapt it. If housing adaptations are a live issue in your case, that cost needs to be factored in separately, rather than assumed to be covered by the property's value alone.

Impact on pensions and long-term security

Pensions are often one of the most valuable assets in a marriage, second only to the family home, and they play a crucial role in your long-term financial security, particularly where health may shorten your working life or your life expectancy.

The court can make a pension sharing order, transferring a percentage of one spouse's pension into a separate pension for the other, alongside pension attachment or pension offsetting as alternative approaches. Where a health condition affects future earning capacity or life expectancy, a larger share of pension assets may be needed to secure your position in retirement.

Where health materially affects life expectancy, expert actuarial advice, often from a pension on divorce expert, is usually needed to properly value what's being shared. Some pension schemes also offer enhanced benefits or earlier access in cases of serious ill health, and specialist advice can help establish the true value of what's on the table.

Disability benefits, PIP and other state support

If you or your former partner receives Personal Independence Payment (PIP), Attendance Allowance, Universal Credit or Carer's Allowance, this forms part of your financial disclosure, recorded on Form E, and it feeds into the overall picture the court considers under section 25.

Receiving a disability benefit doesn't automatically reduce what you're entitled to in a divorce settlement. The court looks at the whole picture, income, capital, earning capacity and needs, rather than treating a benefit as a straightforward offset against your claim.

Because this sits at the intersection of family law and welfare benefits, it's worth getting advice early, particularly if a change to your financial settlement could affect your entitlement to means-tested support going forward.

Where a child of the family has health needs

If a child of the family has a health condition or disability, this can have a significant impact on your financial settlement, beyond the day to day arrangements for their care. Specialist schooling, therapies, equipment, respite care, and adapted transport or housing can all add up to a substantial ongoing cost.

Where a child has an Education, Health and Care (EHC) Plan, or receives Disability Living Allowance or PIP, this is likely to be relevant to the court's assessment of the family's needs, both now and as the child approaches the transition to adult support at 18.

If you provide significant care for a child with additional needs, this will usually affect your own ability to work, and that's something the court will take into account when considering both the division of assets and future spousal maintenance.

In some circumstances, an application under Schedule 1 of the Children Act 1989 may also provide additional financial support for a child's needs, separate from the main settlement.

Running two homes that both suit a child's needs isn't cheap, and that's a practical reality the court will want reflected in a fair outcome, not treated as an afterthought.

When a party lacks mental capacity: the role of a litigation friend

Occasionally, one of you may lack the mental capacity to conduct financial proceedings, whether that's due to a long-term condition, an injury or a deteriorating illness. Where this happens, a litigation friend, someone appointed to act in your best interests during the case, will conduct the proceedings on your behalf.

A litigation friend is often appointed through the Court of Protection, or in some cases via the Official Solicitor, depending on your circumstances. If this applies to you or your former partner, it's worth speaking to a specialist early, since it can affect both the timing and the shape of the settlement.

Timing, interim orders and practical steps

Health-related financial cases can take time, particularly where medical evidence or an expert report is still being obtained. If you need financial support in the meantime, the court can order interim maintenance, sometimes called maintenance pending suit, to cover your needs until a final settlement is reached.

A legal services order can also help meet your legal costs during proceedings, if you wouldn't otherwise be able to afford representation. Where a prognosis is still uncertain, for example, if further tests or treatment are expected to clarify the outlook, it may be worth applying for an adjournment rather than settling on incomplete information.

What you shouldn't do is leave things informal. Reaching an understanding ‘for now’ without a court order can leave you exposed if circumstances change, or if your former partner is no longer willing to honour it. Getting early legal advice gives you a clearer picture of your options before decisions are made that are hard to unpick later.

How Crombie Wilkinson can help

Health needs and divorce settlements bring together medical, financial and legal considerations, and getting it right takes experience. Our family team has advised clients across Yorkshire on cases involving long-term illness, disability, mental capacity and complex pension arrangements, and we understand how personal and pressing these situations can feel.

If you'd like advice about a financial settlement after divorce, including where health needs or disability are part of the picture, we're here to help. Our offices in York, Selby, Malton and Pickering are ready to support you, in person, by phone or by video call.

This article is for general information only and does not constitute legal or professional advice. The law may have changed since this article was published.