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A spouse’s dementia does not stand in the way of an effective divorce – Family Law

GRP Rainer LLP

A divorce can be obtained even when one of the spouses suffers from dementia if the affected spouse had already expressed a natural will to divorce.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Bremen, Dusseldorf, Essen, Frankfurt, Hamburg, Hanover, Munich, Nuremberg, Stuttgart and London – www.grprainer.com/en conclude: The Superior Court [OLG] of Hamm (File number: 3 UF 43/13) had to deal with the effect of Alzheimer-type dementia on the decision in divorce proceedings. The petitioner, who suffers from Alzheimer disease, and the respondent separated at the end of 2011 after eight months of marriage. In 2012, the petitioner’s caregiver filed a petition for divorce. The family court granted the divorce in spite of the respondent’s claim that her then husband wanted to continue the marriage. The OLG of Hamm has now confirmed this.

According to the OLG, first of all, the petition had been filed effectively by the petitioner’s caregiver as his representative, and the guardianship court had approved this. Although the respondent wished to continue the marriage, the parties had already lived apart for more than a year, which constituted the prerequisite for a divorce. In the petitioner’s opinion, the marriage had broken down without a possibility of resuming cohabitation.

Even the evidence collected by the court had shown that the petitioner had the intention to separate and to divorce. While his illness at the time of the hearing had progressed far and that it had therefore no longer been possible for him to make a decision about a divorce, it was possible to go back to remarks which he had made during a judicial examination early in 2012. During that examination, the petitioner had clearly expressed his will to separate and to divorce. An expert medical opinion confirmed that he had been able to form a free opinion at that time. For that reason, the court found that it was irrelevant whether a will to divorce could no longer be expressed at the divorce hearing.

The consequences of separation and divorce can be far-reaching for both spouses. Persons who have not concluded a marriage contract beforehand will often have to be prepared for an unpleasant legal dispute. It is advisable to clarify important aspects of divorce at an early time with a lawyer experienced in family law. Often, in addition to property-related issues, there are questions regarding parental care and custody.

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