Addiction and divorce: challenges for the client and the adviser

As family lawyers, we are used to meeting our clients at a time when they are at their most vulnerable. This is intensified when addiction is present within a family. Divorce or separation places an added burden upon everyone involved and those individuals are likely to have experienced or still be experiencing the destruction that addiction can cause, some of it obvious and some of it less so.

Being alive to the particular challenges which may present themselves in a divorce involving addiction is essential but this should be balanced with an understanding that the issues are likely to be different for each client and for each family.   

Common Challenges for the Family Lawyer

Secrecy

Addiction is not always obvious and you are rarely told the full story at the beginning of your lawyer/client relationship. Often client’s with addiction issues present as healthy with successful careers and are exceptionally good at hiding their addiction, on one level. With one addiction often comes a second addiction and very often your client is not honest with you about this either.

This is why building a relationship of trust is so important and you can start this by being non-judgmental, supportive and patient. You will need to ask questions, probably a lot of them but don’t expect all the answers to come at the beginning and do not assume that your client will tell you about any difficulties. You cannot hold back from asking for more information for fear of being intrusive but you do need to learn to ask the right questions, at the right time. Guilt, shame and denial are all commonly experienced and are likely at timed to impact a client’s capacity to be honest. These are also feelings experienced by the partners of an addict.

Co-occurring issues

It is extremely common for people to experience problems with their mental health as well as alcohol/drug use at the same time.  These are known as co-occurring conditions.

Research shows that mental health problems are experienced by the over 70% of drug users and 86% of alcoholics. Some experienced therapists tell me that they believe the statistics are even higher. These other mental health disorders can include anxiety, depression, ADHD, bipolar disorder and personality disorders. 

These are not always obvious to the practitioner and may not be fully known or understood by the individual but it’s important as a family lawyer to be alive to the likelihood of co-occurring issues.

Capacity

There is an assumption that everyone is capable of making decisions for themselves unless there are strong grounds to indicate the opposite. For the purposes of the Mental Capacity Act, a person lacks capacity if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

Crucially, when dealing with addiction, it does not matter whether the impairment or disturbance is permanent or temporary.

As a family lawyer, it is important to remain vigilant about the interactions you have with your client and consider whether you have noticed a change in your client’s tone, or their method and frequency of interactions, for example.

Communication channels /boundaries

If your client suffers with an addiction, then it is essential to plan at the outset of your relationship with them who their professionals are, including therapeutic support. If you’re acting for the spouse of an addict then therapeutic support is just as important and should not be forgotten about. We pride ourselves on being able to put our clients and their families in touch with therapists specialising in addiction.

It is sensible to discuss and agree at the outset what your communication channels are going to be and as with all vulnerable clients, consider taking next of kin/emergency contact details and agree with the client the circumstances in which you will contact that individual e.g. if you cannot get hold of your client for a certain period of time

The approach of the Family court

Many people view addiction as a moral failure. This can mean that when their partner is struggling with addiction, they treat it as a path that has been chosen deliberately; much like having an affair, or abandoning one’s family.

In contrast the family court treats addiction as an illness and will rarely apportion blame. The Mental Health Act 2007, states that ‘dependence on alcohol and drugs is regarded as a mental disorder’. So just like depression, anxiety, and any other illness affecting the mind, the person with the condition does not choose to suffer from it. The court will not allow a party to cherry pick aspects of their spouse’s personality and will adopt an ‘in sickness and in health’ approach that will not punish the addict.

The court’s approach is sometimes difficult to understand for the spouse of an addict and this can be particularly true when it comes to dealing with the finances on divorce. Very often the spouse struggling with addiction has spent money, often a huge amount of it, on their addiction(s). Their spouse (who sometimes will not have known the true extent of the financial loss) expects that amount to be quantified and then the amount by which the assets have been reduced added back in to the pot, either actually or nominally by a deduction from their spouse’s ‘share’. These are known as “add back” arguments but the court made it clear in 2007, following the case of Vaughn v Vaughn, that an addback will only succeed if, “wanton dissipation of assets” can be proved.  To establish wanton dissipation of assets, there must be clear financial misconduct and such conduct must be gross and obvious. 

It can often be very hard for a spouse to accept that a £50,000 engagement ring bought for a new partner will usually be taken into account and ‘added back’ to the assets but £750,000 spent on cocaine and gambling is treated differently.

Legal Process options

Court, whether in relation to finances or children, will almost always not be the right option for someone struggling with addiction and going through a divorce. It is important that the practitioner acknowledges that from the very outset and explores Non Court Dispute Resolution (NCDR) options such as mediation (including lawyer inclusive mediation), arbitration and private hearings even more thoroughly than they would normally.

There are a variety of private options that can be tailored to the client’s needs and have much higher chances of settlement. Hearings can take place in comfortable surroundings, at a time to suit the clients and with support networks on hand if they are required.

Duties to children

In England and Wales, when the family court decides who a child should live or spend time with following divorce, there is a presumption that the involvement of both parents in the child’s life will further the child’s welfare. This is known as the statutory presumption of parental involvement. When one parent has an addiction, you are often faced with having to explain firmly to your client that the sooner they are completely truthful and show insight into the impact of their illness and resulting behaviour and the overriding importance of safeguarding the children, the better.

Our role is more complex than simply getting the best outcome for our client in these circumstances. Instead we need to manage and negotiate the complex arrangements that are often required, to allow the children in families where there is a parent with an addiction, to have fulfilling and safe relationships with both of their parents.

When one parent is an addict, the future co-parenting relationship becomes much more complex and requires a delicate balancing act between a number of competing factors such as:

• Supporting a child’s relationship with their other parent, whilst keeping them safe
• Providing a predictable environment whilst dealing with an unpredictable situation
• Acknowledging the problem without attacking the person
• Separating one’s own feelings about the other parent’s addiction from the child’s needs

No matter how difficult the circumstances may be for the adults, the needs of the children must take priority and it is the skill of a good family lawyer to keep that at the forefront for them and their client. The early decisions made involving children are critical and it will make such a difference if they can be made consensually with the help of lawyers, mediation or another NCDR route. By reaching agreement, both parents have more chance of feeling that they have shaped the outcome and the children are left with the sense of a restructured but otherwise intact family.

The family and divorce team at Kingsley Napley has considerable experience of divorces where addiction is a feature and the unique difficulties these cases can present. Divorces involving addiction are fact specific and often involve highly charged emotions. It is essential that the correct strategy is adopted from the outset as well as the correct professionals and support for everyone involved and that is what our team prides itself on getting absolutely right.

FURTHER INFORMATION 

If you have any questions regarding this blog, please contact Abby Buckland in our Family and Divorce team. 

 

About the author 

Abby is a Partner in the Family and Divorce team who specialises in matters involving all aspects of private family law and in particular complex financial issues and private children cases.