Alzheimers and Divorce

xgrax

My dad has been recently diagnosed with Alzheimers which is fairly severe. Pre diagnosis he had instigated a divorce. Can anyone please advise on if proceedings can go ahead? His solicitor has it in writing that he is no longer compos mentis and everything is at a stand still with neither party knowing how to proceed. Has anyone come across a similar situation?

Peregrinus

I am very sorry to hear about your father.

No, the divorce can't go ahead.

He's not competent to instruct solicitors, so he can't bring the matter forward. Based on my knowledge of Alzheimers, it's progressive and doesn't remit, so if he's not competent now he won't be in the future. If he were made a ward of court, wardship allows a wide range of property and financial matters to be dealt with on his behalf, but it doesn't allow anyone to make and exercise personal decisions like voting, marrying or divorcing.

The only way I can see a divorce going ahead is if his proceedings are struck out, and his wife then launches her own proceedings, which she could progress, seeking an undefended divorce. But to be honest I think a court would be extremely reluctant to grant a divorce against a defendant unable by reason of illness to participate in the proceedings.

Pixie Chief

That is indeed a sad situation OP, sorry to hear that. Read your reply with great interest, Peregrinus - given the length of separation required for divorce in Ireland, does that then mean that a separated person whose spouse, before the required separation period ended, developed an illness or disability or incurred an injury that affects their competency to make legal decisions, would then never be able to divorce, re-marry or move on with their lives? And surely if still married, claims could be made against them for medical or other bills etc at any time in the future? That's a frightening thought, tbh.

Peregrinus

Well, "in sickness and in health", you know? That's the deal.

I wouldn't say it can never happen. In this particular case the divorce was sought by your father, who can't now pursue it. You don't say what attitude his wife (who I assume is your mother) took or would have taken to it. But if she wants a divorce she can institute and pursue her own proceedings.

As your father can't defend the proceedings, the courts will hesitate before granting it. Under Irish law, before granting a divorce the court has to be satisfied that the spouses have been living apart for four out of the last five years, and that there is no reasonable prospect of a reconcilation, and I assume that it will be possible to check those two boxes. But the court also has to be satisfied that "such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses", and it can't ignore the fact that your father is ill, and will not recover, and his illness is such that his need for financial and practical support is likely to be high. They'll be asking themselves whether he might be disadvantaged by a divorce and if the answer is "yes" well, that's going to be a problem. If they do grant a divorce the fact of your father's illness will certainly be reflected in the property and financial orders made.

Of course he himself wanted a divorce before he was overtaken by his illness, and the court will take that into account. On the other hand, he didn't know of his illness then, or it's likely course; there's no knowing what his attitude to divorce would be in the current cirumstances. Also, the role of the court is not confined to trying to guess what your father would have wanted and then giving him that; it has its own judgment to make about whether a divorce is appropriate.

I imagine, but I don't know for certain, that there are procedures for appointing a guardian ad litem or similar to represent your father in any proceedings that do go on. (The only arrangements I know of are for children.) Perhaps other boardies can cast some light on this.

Happdog

My condolences, very difficult situation.

What stage are the proceedings at the moment? Have your parents been separated and living apart for four out of the last five years? Is there a separation agreement?

Forgive me for being blunt but it may be more cost effective for your parents to remain married. Without further information all I can say is that care for your father will become more expensive in the future and he may need to avail of the “fair deal” scheme. You will need to sit down and run the figures. Divorce is expensive and more so when issues like these arise and the money may be better spent on your fathers care.

xgrax

They have been separated and living apart for 8 years now. My father is financially better off and alot more comfortable than my mother who lives on very little and was relying on this divorce to enable her to pay off bills etc and enjoy retirement. My father on the other hand will inevitably require full time residential care in the not too distant future at a huge financial cost I'm sure. To date power of attorney has not been granted nor is he willing to do so and i believe there is a new Bill being passed in the Dail at present to replace ward of court. Divorce proceedings are at present at a stand still and still costing both sides significant amounts in legal fees so maybe your suggestion of going forward by my mam taking proceedings is the only option. Thanks for your advice and suggestions thus far and any further knowledge in this area would be greatly appreciated, I'm way out of my depth!

xgrax

Thanks Happdog! proceedings are fairly well on at the moment to the extent mediation for the division of assets had begun. My father deteriorated very quickly and now dosn't know what a divorce is never mind remember being married (27years). After living so long apart and such a lengthy separation legally are they still considered married? My father has control over all the family assets and my mother is struggling. I just want to see a fair outcome for both parties.

Happdog

You really have to take a commercial view about this, extremely difficult I know. The aim here is to insure that all parties are looked after both physically and financially. They are still married up until a decree of divorce is issued. Has an actual civil bill been filed for divorce?

When you say that your mother is reliant on the divorce to help her pay off bills, why do you think the terms of the divorce will be significantly different then the terms of the separation agreement? Is there a maintenance order in place?

I assume that your fathers will has been changed in the last number of years to take into account the separation. From the sounds of it your father is so far gone that he is incapable of changing his will or giving some one power of Attorney. Is he ever fully lucid?

If your father is made a ward of court costs will escalate in regards any legal proceedings. The wards office has no concept of money. It is in no one’s interest to have the estate resources used to pay legal costs in what may be ultimately a pointless exercise. A Judge would be cognisant of this and I would imagine their advice would be to try and solve this in an informal manner.

Sorry for all the questions but it is extremely important that you find out what exactly is contained in the separation agreement as this will determine a whole range of issues such as succession right.

xgrax

To the best of my knowledge a civil bill has been filed for divorce yes! But that i will have to double check.
As with the separation agreement, I will check

My mother sold a house she bought prior to their marriage during their separation, the proceeds of which is been held in the solicitors bank account until finalization of the divorce. She has no access to this right now as things stand. There is no maintenance order in place no.

At present my father has no will despite being pressured to make a will in recent weeks both over the phone and in writing by his solicitor, despite him having his doctors report on file to say he is no longer compos mentis. I don't know is he acting correctly here either?