Mental Health Issues in Divorce and Children Custody Proceedings

Mental Health Issues in Divorce and Children Custody Proceedings

Mental Health Issues in Divorce and Children Custody Proceedings 1050 701 Alfred Ip
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In our previous article “The Impact of Divorce on Parents’ and Children’s Mental Health” we have talked about how divorce can impact on mental health, however on the other end of the spectrum there are cases where mental illness is actually one of the main factors causing a relationship to break up and lead couples to separation and divorce.

Can mental health issues lead to divorce?

Mental disorders may affect an individual’s capability to form and maintain conjugal relationships. Entering a marriage improves earnings as well as physical and mental health, while divorce has negative effects on future income and on the economic and social wellbeing of children. Individuals with higher levels of distress, alcohol abuse, or psychiatric disorders are more likely to divorce. A spouse may suffer from a condition which causes him/her to behave in ways that are detrimental to the relationship – e.g. aggression, narcissism, substance abuse, self-centered behaviour, excessive spending impacting, dangerous behaviour or even psychological or physical violence. These are very common marital issues in the divorce cases that we currently deal with.

Can I divorce my mentally ill spouse?

When starting divorce proceedings, the petitioning spouse must state the grounds for divorce or the reason for the irretrievable breakdown of the marriage. If you’re seeking a divorce from your spouse based on fault grounds (namely unreasonable behaviour), you must set out the psychological abuse, incurable insanity, violent behaviour, substance abuse, neglect, abandonment or other fault grounds to justify that you cannot be reasonably expected to live with your spouse.

Generally, the Court does not consider who is at fault for a divorce when they divide up the matrimonial assets. However, the Court will certainly look into the parties’ individual circumstances and their future needs, and bad habits such as substance abuse will not receive a lot of sympathy from the Court. In other words, if one spouse has substance abuse issues or an addiction, that spouse may have less say in the divorce proceedings. Courts do take addiction and substance abuse seriously as they want to make sure that the addicted spouse takes responsibility for his/her actions, especially in cases involving children.

Mental capability

If a spouse is suffering from mental illness to the point of not being able to make lucid decisions, the Court has a series of options to protect that person, both personally and his or her property. It can also appoint a guardian, especially if the illness is so extreme that the individual is to be considered incapacitated. A third party can be appointed to manage assets on behalf of an ill person, such as paying rent and providing for necessities or selling stocks and properties.

Matters impacting children

Another rather problematic aspect of mental illness is the impact it has on children. The Court, acting in the best interests of children, must make sure that they are safe, while still safeguarding a parent’s rights to have a relationship with the child. The Court would call for social welfare report, with social welfare officer conducting extensive investigation on the family’s circumstances, including interview with the parents, other relatives and children’s teachers and forming a recommendation in term of nesting and parental access. Mental illness of one of the parents may certainly affect the final recommendation of the social welfare officer. If a parent is undergoing psychiatric treatment, supervised access may be ordered, so that children can see the parent in a safe environment.

When one parent is alleged of having substance abuse issue, that parent may be required to give an undertaking to Court and the other parent not to use any substance when he or she is with the children, or attend regular test to show that substance abuse is no longer an issue before he or she is allowed to have access with the children, in particular overnight access.

Our team at Hugill & Ip has extensive experience in dealing with Hong Kong family laws, so kindly get in touch with us to find out how we can help.

This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.

Alfred Ip

Alfred assists high net-worth individuals (HNWIs) in handling their wealth-related issues, such as contentious and non-contentious trust and probate, mental capacity, family office, amongst other wealth management matters. He is also a leading Dispute Resolution lawyer with over 20 years of experience in Hong Kong. Moreover, Alfred helps clients with issues regarding Family Law.

All articles by : Alfred Ip
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