Relationship breakdown in the context of a personal injury claim
Tragically, the impact of an injury is almost never felt solely by the injured person themselves. The ripple effect is often felt by partners, children, the wider family, friends and colleagues.
The early days post-injury are often occupied by initial treatment, hospital visits, discharge planning, sometimes without much time to begin the process of adjusting to and coming to terms with the injury and what it means not just for the injured person, but for those around them. Equally, even with extensive care and support packages in place, often family still contribute in terms of caring for the injured person whilst at the same time normally receiving little to no formal support themselves.
The grief and trauma of coming to terms with the loss of who that person was pre-injury may very often be completely overwhelming. With no formal support, plus the impact of having to care for an injured loved one, it's not hard to appreciate the scale of that challenge. This is further complicated by the fact that the injured person may lack insight into their injury, whilst their injury has completely altered all sense of 'normal' family life as it was before.
In a 2018 report into the findings of their study into relationship changes after brain injury, Headway concluded that relationship breakdowns after brain injury were attributed to a lack of understanding about brain injury, having less time to see one another and challenges of managing the effects of brain injury. Whilst those findings are in the context of head injury specifically, it isn’t difficult to see how any sort of injury could cause challenges to relationships.
As a serious injury solicitor, I must be alive to the issue of potential relationship breakdown in the context of a personal injury claim and, therefore, how I can best support clients and provide the most comprehensive advice as, in many cases, the possibility of relationship breakdown has potential implications that a claimant must be aware of. For example, if an injured person’s care claim is, either in part or entirely, based on their partner providing care, if their relationship was to break down then their claim for care would then need to be presented differently and it could, possibly, increase its value. There may also be considerations in terms of any accommodation claim.
It is of course impossible to predict every eventuality, but if an injured person clearly expresses issues in their relationship, which are possibly reiterated in records too, then it may be considered appropriate to address the issue with them by way of formal advice. A claimant in these circumstances should understand the effect relationship breakdown could potentially have on their case. This of course needs to be done with sensitivity and discreetness. Equally, the advice should never influence any decision that a claimant and their partner ultimately make about their circumstances.
There are other practical considerations that a claimant should be aware of. Awards of damages are not automatically ring-fenced in the event of relationship breakdown, and so any claimant may want to consider how they want to protect their potential settlement depending on their relationship circumstances.
Sarah Balfour, a partner in our family team, explained that upon divorce some heads of loss within a personal injury claim can be more 'vulnerable', including past losses, future loss of earnings and pension. Damages received in relation to, for example, future care and therapy, are usually less open to attack but it depends on the circumstances.
Ultimately, if a married claimant was to divorce and they couldn't agree financial arrangements between them, then the court would decide the terms. The court has a very broad discretion, but the important point is that any and all damages, in theory, received in any personal injury settlement, are potentially open for consideration in such proceedings. Consideration should always be given in the final settlement order as to the breakdown of the final settlement so that the court is aware of what was awarded for each head of loss.
There are other options for claimants to consider, including a pre or post nuptial agreement setting out how assets, including any current or future damages award, would be divided in the event of separation. Whilst these documents are not strictly binding in current law, if entered correctly, they can be very persuasive to the family court.
It's therefore essential that claimants receive comprehensive advice about this issue and not just the effect on their personal injury claim, but also the practical considerations that they may want to think about in terms of managing and protecting any potential award post settlement.
Find out more about Irwin Mitchell's expertise in helping people affected by serious injuries and their families at our dedicated serious injury section.
