Dealing with a mentally unwell partner during divorce, separation

Millions of Canadian adults experience a mental disorder or illness at some point. If your partner is among this group, the chances are that it impacts your relationship.

And if you are separating from or divorcing this person, challenges can arise with the mentally unwell partner during divorce.

Making legally enforceable agreements

Having a marital contract or separation agreement is more common than ever. However, these agreements are not always enforceable. One reason why the courts set them aside is if one person was mentally unwell when they signed the contract.

We discussed this matter in more depth in a previous blog post, which readers can view in full here. But as a brief overview, we noted that courts have deemed agreements unenforceable if one person did not understand the consequences of what they were signing due to mental illness.

Reaching peaceful resolutions

Some mental illnesses make a person volatile and unreliable; some can make a person withdraw or paranoid. These and other traits of mental health conditions can influence the method that parties utilize for resolving disputes.

Mediation and other cooperative efforts can be successful with the help of mental health professionals and legal representatives for both people.

In my view, if there is a mentally unwell partner during divorce, then with respect to any agreement that might be reached outside the court process, you need to obtain a court order – you need to obtain a judge’s approval.  It’s just that simple.

Addressing child-related issues

Mental illness alone is generally not going to make a parent entirely disentitled to spend time with the child unless the condition is so severe that parenting time is clearly not in the child’s best interests.  

However, mental illness is one factor that parties consider when assessing whether an arrangement is in a child’s best interests. It can affect decision-making responsibilities and parenting time (previously called custody and access) in various ways. 

For example, a mentally unwell parent may not have as much unsupervised time with their children as a mentally fit spouse. And courts may determine the mentally well parent should be responsible for making medical or academic decisions for a child.

Legal guidance can be critical

Family legal matters are complicated. Mental illness can make them more complex and emotionally delicate. If you are divorcing or separating from someone with a mental illness, having legal guidance as you navigate the process can be crucial in reaching enforceable agreements and protecting your family.