Is my spouse entitled to my compensation for clinical negligence or serious injury in divorce proceedings?

In most cases, the aim of pursuing a clinical negligence or serious injury claim is to seek financial compensation to help pay for the extra support and care that’s needed as a result of the condition or injuries (or injuries) sustained. Yet when a marriage or civil partnership breaks down, compensation awards aren’t ring-fenced and may form part of the ‘pot’ to be divided in divorce proceedings — despite the compensation being awarded to the injured spouse only.

With divorce rates steadily rising year-on-year, divorce law expert Amy Harris and medical negligence solicitor Laura Earps explain how the law works and outline the available routes to safeguarding your compensation from financial settlements in divorce proceedings.

Types of compensation

In a successful claim for clinical negligence or personal injury, two types of compensation may be awarded:

• General damages — compensate an individual for the actual injury or medical condition sustained and any ongoing suffering.
• Special damages — compensate an individual for past and future financial losses.

The amount of compensation paid will vary depending on the seriousness of the condition or injuries and how long it will take for an individual to recover (if at all).

Find out more by reading our FAQs.

Is my spouse entitled to my compensation in divorce proceedings?

Whether your spouse is entitled to your compensation will depend on the particular facts of your case.

To give an example, in Mansfield v Mansfield, the husband (Mr Mansfield) had received £500,000 in compensation for personal injuries suffered in 1998. He used this to purchase two properties and later met his wife, whom he married in September 2003. During the marriage, the couple had twin daughters before separating in 2008.

It was held by the court that Mr Mansfield’s compensation wasn’t ring-fenced and his wife was entitled to part of the £500,000.

Section 25 of the Matrimonial Causes Act 1973 sets out the various factors for a court to take into account when considering the appropriate division of assets. This includes “having regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen”.

It’s therefore the role of the court to ensure that both partners’ needs are met, with priority given to the needs of any children. It follows that if there aren’t sufficient matrimonial assets to meet such needs, any non-matrimonial assets may be vulnerable — including compensation awards.

How the law works

The court has broad discretion to make financial orders upon divorce or the dissolution of a civil partnership. It will look at each person’s income, earning capability, property and any other financial resources they each have and consider their financial needs and responsibilities, disabilities and respective contributions.

To provide some clarity, in the case of Wagstaff v Wagstaff (1992), Lord Donaldson said:

“… compensation is a financial asset which, like money earned by one spouse by working excessively long hours or in disagreeable circumstances, is (subject to human selfishness) available to the whole family before the breakdown of the marriage and, like any other asset, whether financial or otherwise, has to be taken into account when the court comes to exercise its powers in accordance with section 25 of the Matrimonial Causes Act 1973”.

It's clear that a personal injury award will be treated as a ‘financial resource’ of a person who’s getting divorced. However, the extent to which any award can be used by the non-injured partner will depend on the family’s circumstances and needs. Where possible, the court will leave the majority of the award with the injured party — but everyone’s needs must be met and every case is fact-specific.

Divorce after a brain injury or other serious injury

Sadly, the likelihood of divorce increases following certain injuries, such as brain trauma. Olympic rower James Cracknell has spoken openly about the breakdown of his marriage following a brain injury in 2010, which led to apparent changes in his personality.

Those suffering from brain injury or another serious injury are likely to require significant care and support. It’s therefore important that individuals put in place measures to safeguard compensation awards to ensure that they have the financial resources to meet those needs.

How to safeguard your compensation award

Personal Injury Trusts

To safeguard compensation, individuals can consider setting up a Personal Injury Trust. However, this will again depend on the circumstances of each case. A Personal Injury Trust is a legally binding arrangement that will protect your compensation if you are (or will be) claiming means-tested benefits. 

A Personal Injury Trust may ring-fence your compensation and it may be easier to argue that the fund should be retained by you — rather than being included in any pot of assets to be divided. You can appoint Trustees (including yourself) to manage the Trust.

Nuptial agreements

Individuals can also consider entering into nuptial agreements, such as a prenuptial agreement (also known as a ‘prenup’ and entered into prior to marriage or a civil partnership) or a postnuptial agreement (also known as a ‘postnup’, entered into when a couple is already married or in a civil partnership). 

While nuptial agreements aren’t (currently) 100% legally binding, they’re likely to be persuasive to a court upon divorce or the dissolution of a civil partnership — provided that they’re ‘fair’ and meet each person’s needs. If you enter into a nuptial agreement, you should expect to be held to its terms. Find out more by reading our FAQs.

Nuptial agreements allow couples to decide how their assets — including any compensation — will be divided in the case of divorce or separation. This gives the couple autonomy to make decisions as to what they want to happen in the event of divorce — helping to keep break-ups amicable and reducing the cost of separation. 

It’s also recommended that any compensation award is clearly broken down to identify how much has been awarded in respect of general damages and special damages. In divorce proceedings, this helps the family court to determine whether a sum awarded was for the purpose of meeting an essential need of the injured person — which will increase the likelihood that it should be ring-fenced to meet that person’s needs. 

Talk to us

If you need legal advice about divorce, wealth protection or compensation, our friendly experts are here to help. 

Our award-winning family law team can help to guide you through your divorce and provide specialist advice on issues relating to financial claims. We can also support in relation to wealth protection agreements, including prenups and postnups.

Our medical negligence and serious personal injury team is also experienced in handling serious injury cases of all types and can work with you to achieve the very best level of future financial security and independence.

You can arrange a confidential conversation by giving us a call, sending us an email or completing our contact form below.