Over the past year, I have seen a noticeable increase in cases involving terminal or life-shortening illnesses. These are some of the most difficult matters family lawyers encounter, not only because of the human tragedy involved, but because they raise challenging questions about fairness, life expectancy and future financial provision.
These issues can arise in cases involving conditions such as cancer, motor neurone disease and other serious illnesses which may shorten life expectancy or materially affect a person’s day-to-day needs. Each case will be fact-specific, but the legal and practical questions are often similar: what evidence is available about prognosis, what care and housing needs arise, and how should the court approach fairness where one party’s health has significantly changed?
A key issue is usually life expectancy. Parties may seek to rely on the illness to argue for a different structure or distribution of assets, but the court will not usually proceed on assumptions alone. Medical evidence is essential, and in many cases treating clinicians may be understandably cautious about providing firm prognoses unless death is imminent. Where prognosis is disputed or uncertain, independent expert evidence may be required.
Drawing on authorities including SC v TC [2022] EWFC 67and M v M [2015] EWFC B63, the court reiterated that a person’s housing, social and lifestyle needs do not disappear simply because they are disabled or seriously ill. A shortened life expectancy does not justify reducing what would otherwise be a fair settlement. The court was clear that fairness remains the guiding principle.
The assessment should also focus carefully on needs. A party with a life-shortening illness may require adapted accommodation, professional care, therapies, transport support, assistance with daily living, or provision for periods when informal family care is no longer available. Where finances are tight, those needs may justify a departure from equality if that is necessary to achieve a fair outcome. The fact that a party may have a reduced life expectancy should not, of itself, be used to reduce provision below what is required to meet their actual needs.
Practical Lessons
For practitioners, the following points are particularly important:
- Obtain medical evidence early. Life expectancy, prognosis and likely progression of the condition from treating clinicians.
- Consider whether expert evidence is needed, including medical, care, occupational therapy, housing or financial evidence, to assess future needs properly.
- Ensure care needs are properly costed across the relevant years, including the possibility of increasing support as the illness progresses.
- Where resources are limited, analyse whether needs justify a departure from equality, while remembering that serious illness should not prejudice a party’s entitlement to a fair outcome.
What has struck me the most about the court’s approach is its consistent focus on fairness. Family lawyers are often asked to confront uncomfortable realities about health and mortality. However, the lesson from the authorities is clear, that illness may affect needs, but it should not undermine entitlement. The courts are increasingly cautious about any approach that effectively values a person’s claim by reference to how long they are expected to live.
In other words, fairness does not have an expiry date. Even where life is tragically shortened, the principles of equality, autonomy and non-discrimination remain firmly in place.
All of our family lawyers are accredited members of Resolution, reflecting our commitment to resolving family matters in a constructive, practical and client-focused way. If you would like advice or support with any family law issue, please contact Kiren Dhillon or a member of our Family team, who will be happy to help.