Compensation and divorce – will I lose my damages if I get divorced?

We specialise in obtaining the best achievable awards of compensation for victims of medical negligence so that, as far as possible, their needs can be met for the rest of their lives. We act for a wide range of claimants from those with cerebral palsy to survivors of critical infections such as meningitis. However, even after a successful claim, these medical damages could be claimed by a former spouse as part of a financial settlement on divorce. Is this really fair? As medical negligence lawyers, is there anything we can do to help our injured clients in protecting their assets from their spouse?

Getting compensation

Typically, an award of compensation will include elements for pain and suffering, past losses (expenses already incurred at the time of the award) and future needs. These needs can include suitable accommodation, future care needs, equipment and future treatment costs. Evidence from a variety of experts is usually required to make these assessments and the process of calculating the sums involved is often complex.

More likely to get divorced?

Sadly, the likelihood of marital breakdown increases following some injuries such as brain trauma. Olympic rower James Cracknell has spoken openly about the breakdown of his marriage following a brain injury in 2010 which led to apparent changes in his personality.

Compensation not protected from divorce

As discussed previously from a family law perspective by my colleague Sital Fontenelle (Link to article here) if a marriage or civil partnership breaks down, awards of compensation are not ring fenced and can form part of the pot to be divided within  divorce proceedings. 

Section 25 of the Matrimonial Act 1975 sets out the various factors for a Court when considering the appropriate division of assets. The Court must have regard to all the circumstances of the case and the primary consideration has to be the welfare of any children.

As Sital explains, not all assets will be considered matrimonial property. Some can be designated as non-matrimonial property – not a financial product of the parties’ common endeavour. There is no clear position as to whether or not personal injury compensation awards will be treated as non-matrimonial assets and as it stands, it is considered on a case by case basis. However, there are strong arguments for medical compensation being considered a non-matrimonial asset.

Nonetheless, even if a compensation award, or part thereof, is assessed as non-matrimonial, such assets can still be vulnerable in the divorce settlement if there is a particular need. The role of the Court in divorce is to ensure both partners’ needs are met, with priority given to the partner with whom any minor children are resident. Therefore, if there are not sufficient matrimonial assets to meet needs – both income and capital, those assets that are non-matrimonial can be invaded. When considering using medical damages, a Court will look at purpose for which the compensation was intended although this may not always be clear on the face of the settlement, particularly if the claim is compromised.

Is the law fair?

Clearly as it stands the Courts are faced with tough choices. But the question needs to be asked: is it ever fair or reasonable to use medical compensation to settle financial remedy claims in this way?

If negligence awards were ring fenced by law, it would bring some certainty to injured parties who, having obtained compensation to secure their future needs, still face the stress of a divorce. However, there appear to be no moves in the offing to change the status quo and the moral dilemma remains as “needs” trump upon divorce.

Get advice as early as possible

Advice should be sought from a family law practitioner if you are facing divorce during or after a claim for medical negligence or indeed if you are looking to get married. Sital has discussed in her article the various options to assist with this difficult situation including putting compensation in to a Trust as well as pre-nuptial agreements. It is also advisable to discuss any possible divorce with the lawyer dealing with your medical negligence claim. As experts in these types of cases, we understand the complexities involved.

It is vital in a divorce situation that a clear breakdown can be shown as to how the award of medical compensation was assessed. Many cases settle out of Court and your lawyer will need to have provided you with this detailed advice – we are specialists in this area.

As medical negligence solicitors, we will also be able to advise you about periodical payment orders (PPO) in cases for large amounts of compensation. These may arguable mitigate some of the difficulties, as noted by Sital. A PPO is an order for payment of an annual amount to meet future needs as an alternative to one lump sum. While these payments will not necessarily be exempt from consideration on divorce, it may be more difficult to include monies clearly marked for ongoing assistance.

FURTHER INFORMATION

If you have any questions regarding this blog, please contact James Bell or a member of the Medical Negligence and Personal Injury Practice, or call us on 020 7814 1200.

ABOUT THE AUTHOR

James Bell is the head of our Medical Negligence and Personal Injury practice and joined the firm in 2023 from Hodge, Jones & Allen. He has undertaken medical negligence cases for over 20 years.  Throughout his career James has dealt with a very wide range of cases concerning all types of negligence claims – delayed diagnosis cases, birth injuries, anaesthetic injuries, surgical errors,  GP and hospital negligence, all types of orthopaedic claims, including complex hip and knee replacement surgery claims and and all types of cancer cases.