Family

Protecting your rights and loved ones
A baby held by her Father illustrating the importance of family and the impact major trauma injuries can have on the family unit

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When you receive any compensation payment relating to major trauma you have suffered, you may want to protect this, particularly if all or part of it is needed to fund future care or housing needs. If entering a new serious relationship with plans of marriage or cohabitation, it may be sensible to take advice on whether a cohabitation or pre-nuptial agreement would assist you. Even if your existing relationship is fine, you may want to consider a post-nuptial agreement or cohabitation agreement which aims to ‘ringfence’ your compensation monies for you and your current or future needs.

There are many different parts of your family life, including those involving a spouse, former spouse and your children, that may be impacted when you sustain a major trauma. We can offer expert legal advice on all matters of this type, allowing you to have peace of mind that your compensation will be used for what it is intended for. We can also help you with matters concerning access to your children.

Due to my injuries my former partner is reluctant for me to see or care for my children – what are my rights?

The law in England and Wales confirms a child’s right to see and know his or her parents. The court will only prevent that right being exercised in very limited circumstances, such as where the child has suffered harm or is likely to suffer harm in the care of that parent.

Your injuries should not of themselves prevent you from continuing to have a good and loving relationship with your child or children.

What are my rights if I am unable to travel to see my children or care for them?

It may be that you need practical help and support around the parenting arrangements. If you remain amicable with your former partner, it may be that they are willing to provide practical assistance in these arrangements. This could be in the form of bringing the children to you, enabling you to see the children in their home, or with younger children, staying with you to support any practical needs such as nappy changing and so on if this is a difficulty for you.

If the situation is not amicable it is possible that a friend or relative can accompany you when you see the children to provide this practical support. If there is no one obvious who can help you within your own friendship and family community, there are paid-for services that will assist with these practical arrangements (we can advise as to the services in your local area). If you have an adult social worker allocated, they may also be able to assist.

What should I do if I struggle to be around my children during my recovery?

If you find that you struggle around children, either because you become easily agitated, impatient, confused or easily tired, particularly in the early stages of your recovery, it may be a good idea to limit the time you spend with your children on each occasion, so that you see them “little and often” rather than infrequently for longer periods.

If you are able to operate a computer and have access to one, or someone can assist you with this, you may wish to consider Facetime and other online time with older children which they can manage themselves to support your relationship with them between physical visits.

Can I recover the costs of childcare as part of my compensation?

Costs associated with helping you facilitate time with your children which you would not have incurred but for the injuries you have sustained may well be recoverable as part of any claim for negligence or damages which you are bringing, so do alert your claims solicitor to these costs and keep receipts and careful records (or ask someone who is helping you to do this for you).

I’m being prevented from seeing my children

If your former partner is preventing you from seeing the children or limiting your time in a way in which you consider to be unreasonable and not in the children’s best interests you may wish to seek legal advice to consider whether it would be appropriate to make a formal application to the court for a Judge to decide what the arrangements should be and how these should be facilitated.

If you have a child over the age of 11 who you are told does not want to see you, or has told you themselves that they do not want to see you, you may wish to take advice as to child inclusive [family] counselling and support for the child to assist them in coming to terms with the change in dynamic following your injury and relationship with you, as a stepping stone as to rebuilding this.

A court can direct supervised or supported parenting arrangements where appropriate.

Can my former spouse claim part of my damages settlement money in a divorce?

The law in England and Wales does not automatically “ringfence” for you any damages monies which you receive as a result of a negligence or injury claim if there is a divorce. It is part of the resources which are available to you and therefore resources which the court must take into account when looking at the overall outcome on divorce in providing for yourself, your former partner and any relevant children. A nuptial agreement may assist you with this, however.

The needs of any relevant dependent children will be paramount. That said, your spouse has no entitlement as of right to 50% of your settlement monies and as this money is not a product of the marriage, i.e., something which you have worked for and produced together, the court will only be likely to say that your spouse should have any part of this where the other available assets are not enough to meet the needs of yourself, your spouse and any relevant dependent children.

Special rules apply to injury compensation payments and related state benefits in relation to the payment of child support.

Can my compensation be split into relevant needs/requirements?

It is important when concluding any negligence or injury claim that the various component parts of the settlement are clearly set out, i.e., what money is intended for what purpose. This is because a court on divorce is more likely to require a sharing of certain parts of your settlement monies with your spouse than other parts. So for example part of your general damages for pain, loss and suffering and for loss of earnings is more likely to be liable to be allocated to a former spouse, whereas, monies allocated for specific purposes such as future care costs, mobility vehicles and costs, disability adaptions and so on are less likely to be shared because they are awarded specifically in order to meet your current and future health needs.

Is money needed for home adaptions safe during a divorce?

Similarly, money allocated to purchase a house which is adapted to your specific needs may also be less liable to sharing. A word of caution here, however, if you “overspend” on your adapted housing costs, so for example buying a six bedroom mansion with land as opposed to a three bedroom property which meets your needs, the courts have in the past and will potentially say that this property will need to be sold and the adaptions moved to a smaller cheaper property, if that is the only way that the financial needs of your spouse and any relevant dependent children can be met. The same will apply to the family home which you already live in which may have been adapted following your injuries to meet your needs if the family home exceeds your reasonable housing need.

Is my (former) spouse entitled to cost reimbursement?

Your spouse or former partner may of course be entitled in their own right to reimbursement for any specific expenses which they have incurred as a result of your injuries, either on your behalf or in assisting you, such as travel costs for taking you to hospital appointments, paying for any adaptions, medical equipment, prescriptions and so on. This will be a separate element of your “special damages” claims for reimbursement of specific expenses and should be reimbursed to them when those expenses are reimbursed to you. That is entirely separate and different however to any claim that they may make upon you in divorce in relation to your wider damages.

I have received compensation for my claim. Should I make a nuptial or cohabitation agreement?

Nuptial agreements are not currently automatically binding in English law on divorce. They, like cohabitation agreements, are contracts between you and your partner. That said, provided they are properly constructed and entered into following set guidance and provided the financial needs of any spouse and dependent child[ren] are otherwise met, they are now regularly being upheld in court in whole or in part. There are additional advantages to entering into such agreements. For example, you are being open and transparent with your partner about your finances and managing their expectations, which should help to avoid any litigation about this if things go wrong with the relationship in the future. It sets out clearly who brought what into the relationship and the financial position of each person, avoiding future potential arguments, especially where compensation is involved.

You do need to have mental capacity to make a nuptial or cohabitation agreement; if this is an issue you or someone on your behalf can discuss this with your family law solicitor. Alternatively, your claims lawyer can. He/she may recommend a trust with a view to protecting monies in addition or in the alternative.

I am not working as a result of my injuries – how can I pay for legal fees?

If you have other income or savings it is likely that you will be expected to use these to meet your legal fees in the first instance. Alternatively, you may be in a position to ask for help from a friend or relative to support these costs. If you do not have access to income or savings, you may be eligible for a legal fees funding loan or public funding (formally known as legal aid) and should ask your family law solicitor whether they offer public funding. If not, they may be able to signpost you to a local firm which can offer this. Public funding, however, is only available in very limited circumstances.

If liability is admitted, or is very likely to be admitted in any claim for damages you are bringing as a result of the injuries you have sustained, the legal fees of a divorce or an action concerning your child or children may be able to be claimed as part of your damages if the relationship breakdown or the difficulties with your children are as a direct result of your injuries. If not, your family law solicitor may be prepared to wait for their fees to be paid once you receive an interim or final payment in relation to your damages and a contractual agreement can be set up between yourself and your family law solicitor and whichever solicitor is acting for you in your damages claims, to ensure that they are paid directly from any compensation monies you receive.

Mental capacity and bringing legal proceedings

If you lack (or believe you lack) metal capacity it is still possible for proceedings to be brought on your behalf or to be represented if your former partner brings proceedings. The first step is to establish through your GP or consultant whether you have mental capacity to give legal instructions. Your family law solicitor can then signpost you from there as to who might assist you alongside themselves.

Having complete control over your compensation monies and rehabilitation journey in relation to your family and access to your children, is something that any person who has suffered a major trauma wants. With our legal expertise, you can ensure that you do have this control and the right advice on all matters relating to family, children, divorce and agreements with a spouse that relate to your injuries.

Can you help me with family law issues?

Our friendly team provides expert legal advice and is on hand to help with the support and expertise you need.

If you would like our help and legal advice with family issues you may be facing please get in touch.

A baby held by her Father illustrating the importance of family and the impact major trauma injuries can have on the family unit

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