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ukfamilysolicitor
ukfamilysolicitor, Solicitor
Category: Law
Satisfied Customers: 1086
Experience:  Qualified Solicitor Currently specialising in Family. Also experienced in Corporate, Employment, Civil Litigation, Debt Recovery
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Can my mentally ill husband divorce me without my consent?

Resolved Question:

Can my mentally ill husband divorce me without my consent?
Submitted: 1 year ago.
Category: Law
Expert:  ukfamilysolicitor replied 1 year ago.
Hello
Welcome to Just Answer
I am a Solicitor and will assist you.
There are various grounds by which your husband could choose to petition for divorce.
If you have been separated for 5 years then your husband can petition without your consent. If you have only been separated for 2 years then your consent would be required.
Your husband could however petition on the grounds of your unreasonable behaviour. This is often known as a 'quickie' divorce.
For this a petition on this basis your husband would need to detail 6/7 reasons why he can no longer remain married to you.
If your husband did petition for divorce - then he would need to complete his divorce petition and send this to the court.
The court would then issue the divorce papers - sending a copy to you along with a Form called Acknowledgement of Service.
You would need to respond by filling in the acknowledgement of service form.
To disagree with the divorce petition fill in the acknowledgement of service form and return it within 7 days to the court. You need to complete the part that says you’re defending the divorce.
The court will send copies to your husband.
After you return the form, you have up to 21 days to say why you are defending the divorce. This is called ‘giving an answer’.
To do this, fill in the answer to a divorce petition - on Form D8b:
http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=2651
There is a court fee of £245.
The court will then list the case for a hearing for the matter to be discussed and see if an agreement can be reached over the divorce.
If that matter is not agreed then the case will be listed for a final hearing - when the Judge will hear evidence from both of you and decide whether the divorce can continue.
Please do ask if I can clarify anything for you.
Kind Regards
Caroline
Please kindly remember to rate positively so that we receive credit for our work.
Customer: replied 1 year ago.

He has been in hospital for three years followed by 6 months in care home and last 6 months supported housing so we have been separate due to his health only. We still have been in a relationship up until 3 weeks ago when he left to stay with his sister for a few days. I became worried but have been unable to contact him. His sister is uncooperative and will not tell me if he is ok. We have not argued or even separated. I have not received divorce papers but apparently they are on their way. I have been removed as next of kin and have no way of knowing how he is. We have two children. I think he is probably unwell. If his sister has power of attorney can she influence him to sign for divorce? Surely this cannot happen without him speaking to me? He has not said that he does not love me, he has not said anything. I think his sister plans to take our money for herself and be in charge of his care and finances. Health and social services are being unhelpful so far although I have cared for him to the best of my ability for 21yrs through many serious hospital admissions.

Expert:  ukfamilysolicitor replied 1 year ago.
Hello
Thank you for clarifying that for me.
I am sorry to hear about the difficulties that you are experiencing.
Your husband is going to have to petition for divorce on the grounds of unreasonable behaviour.
If you are concerned that he may not have capacity - then you can raise this in your response and at a hearing. Given that he has been in hospital then this seems a logical argument. The court might ask a GP to assess whether your husband understands what he is doing. The test is however quite low.
If your husband does petition for divorce and you are concerned about the matrimonial finances - then you should make an application for the matrimonial finances to be resolved. You can ask for decree absolute to be 'held off' until the finances are resolved.
Please do ask if I can assist further.
Kind Regards
Caroline
Positive feedback is gratefully received.
Customer: replied 1 year ago.

What are the examples of unreasonable behaviour? I have not been verbally or physically abusing him. I have not committed adultery I let him see the children whenever he wanted. I am not alcoholic or on drugs. I still love him but it can be difficult to look after someone who has needed specialist care and I have the children to keep safe. If the court rules that there are no grounds does it all get cancelled?

Expert:  ukfamilysolicitor replied 1 year ago.
Hello
The test is a subjective one, not objective. What may be unreasonable to one person, may not be so to another.
The Courts will consider the affect that the behaviour of one spouse has had on the other in concluding whether that behaviour could be deemed ‘unreasonable’.
Reasons could be such as 'didn't pay me enough attention' , 'wasn't supportive'.
Contested divorces are rare and are not easy. The court does consider that if one party has petitioned for divorce then the marriage has likely reached irretrievable breakdown.
If you can convince the court then the petition can be dismissed.
Kindest Regards
Caroline
Positive feedback is gratefully received
Customer: replied 1 year ago.

Am I within my rights to contact his solicitor to see if he has informed them of his condition? How long does it take for the petition to come back from court?

Expert:  ukfamilysolicitor replied 1 year ago.
Hello
You can do this - if your husband instructs a solicitor rather than does the petition himself - then the during the course of taking instructions should make their own assessment as to whether he has capacity to instruct them. If they have any doubt they might themselves ask his GP to confirm the position of capacity.
Kind Regards
Caroline
Customer: replied 1 year ago.

Are you saying yes I can contact and inform his solicitor? Can I do this myself or is it better to go through my own solicitor? And will his financial/child visiting demands be outlined in the first paperwork I receive and do I have to agree or can I object? Can I insist on marriage guidance before proceeding further or will the court decide if he can refuse?

Expert:  ukfamilysolicitor replied 1 year ago.
Hello
If you are acting in person - you can. If you instruct a solicitor its appropriate for them too.
Divorce, Finances and children matters are all dealt with separately although divorce and finances are intrinsically linked.
If you can agree in respect of the children - you don't need a court order.
In relation to finances - the first step is to refer the matter to mediation.
You can by all means refer to marriage counselling in respect of seeking to avoid divorce.
Kind Regards
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Customer: replied 1 year ago.

Finally, if he the meantime he is admitted to hospital or deemed to lack mental capacity by the GP/Consultant will the divorce be postponed/cancelled?

Expert:  ukfamilysolicitor replied 1 year ago.
Hello
Capacity is really dependant upon what your husband understands. As the test is quite low - it could quite well be that your husband has capacity to instruct a solicitor in respect of divorce even if your husband is admitted to hospital.
Kind Regards
Caroline
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