The Ex-Files: My partner has dementia

There are ways you can support a partner who is unwell, even when you are divorced. Photo / 123RF

Q. My wife and I are in our mid 60's and have been married for over 40 years. My wife was diagnosed with dementia about ten years ago and moved into a care facility five years ago. I visit every day despite her not recognising me. Around two years ago, I met someone else and I feel like I have some joy back in my life after a very difficult few years.

We've talked about travelling together and I can see us wanting to live together at some stage. My two children are supportive of this as they see how hard it is with their Mum and they want me to be happy. It doesn't feel right to spend time with my new partner (or even to call her my partner) while I am married.

I still love my wife and will still spend time with her, but I don't want to be married anymore. Is it possible to divorce my wife when she is not capable of understanding the documents? Also, I want to make sure that my wife is always cared for financially and for things to be as easy as possible for my children, should anything happen to me. Any advice you could give me would be appreciated.

A. This sounds like a very difficult situation. It is commendable that you are thinking ahead to look after your wife and children.

While emotionally this is a big step for you, legally speaking it would not be difficult to divorce your wife. In New Zealand, a divorce can be granted by the application of just one spouse and you would not need a lawyer.

Looking to the future, there are things you can do to ensure your wife's welfare. I can only give you a brief overview here, so you should meet with a lawyer who can explain everything in detail.

Prenuptial agreement (prenup)

This is an important legal agreement you should have with your new partner if you want to safeguard your assets for yourself, your wife and your children.

If couples are married or live together for more than three years, then their assets can become "relationship property", which means they are divided equally between them if they separate. Under the law, you could find yourself losing half the assets you and your wife spent a lifetime accumulating – a situation that no-one wants to find themselves in.

A prenup is a formal written agreement signed by you and your partner that sets out how your assets will be divided if you separate, instead of the usual 50:50 split. It is up to you to decide what is included. You may wish to include only a few assets like your home, superannuation, investments, your car and your wife's jewellery. On the other hand, you could go into a lot of detail, including items like tools, furniture, artworks and air points. Prenups vary a lot depending on the couple involved. Your partner will of course have her own list of items she would like to include.

Your prenup will only be legally binding if you each receive independent legal advice and your signatures are witnessed by your lawyers.

It is a good idea to discuss the details of the agreement before you meet with your lawyers. This will save you time and money.

This is probably the last thing you want to be talking about when starting a new relationship. However, a prenup is the best protection for your assets and would ensure you can continue to finance your wife's care.

I have helped many people with prenups, and I can tell you the process is much easier when people have the conversation early in their relationship.

Update your Will

Your Will sets out what you would like done with your assets when you pass away. You can make specific gifts in your Will for the benefit of your wife to ensure her care continues. However, if you do not also have a prenup in place, then assets you may have expected to be part of your estate may not be, if those assets have become relationship property and are jointly owned with your new partner.

Most Wills include the appointment of an executor; the person who will manage your estate. This might be one of your children, a sibling or a trusted friend. You can also include whether you should be buried or cremated.

Some Wills include preferences for the funeral, like where it will be held and what songs or prayers you would like. Details like these are not legally binding, but they are usually appreciated by those planning the service who otherwise have to guess what their loved ones would have wanted.

Enduring Power of Attorney (EPA)

An EPA is a legal document that sets out who you nominate to make decisions if you are unable to make them for yourself. There are two types of EPA. The first one relates to property; this covers your money and your assets. The second relates to your personal care and welfare; this covers your health, accommodation and decisions on your care.

If something were to happen to you and you don't have an EPA, your children will have to apply for a Court order to make decisions for you. This can be costly and stressful. I recommend people appoint EPA's long before they are needed and while they are still in good health.

Conclusion

All of this may seem overwhelming, but your lawyer will be able to explain it in more detail and guide you through the process. It would make sense to complete these documents at the same time, taking the opportunity to talk with your children and new partner about the situation, how you view your responsibilities and your intentions for your wife's care.

As your life and circumstances change, these documents may need to be updated. I suggest you review them every couple of years to make sure they still reflect your wishes.

Best of luck to you.

Do you have a family law question? Email it to js@bastionchambers.co.nz. Questions should not exceed 200 words. Please provide a phone number. Your name will not be published. Jeremy cannot answer all questions, correspond directly with readers, or give legal advice. Jeremy's advice is of a general nature, and he is not responsible for any loss that any reader may suffer from following it.

- Jeremy Sutton is a senior family lawyer, specialising in divorce cases where there are significant assets, including family trusts and complex business structures. www.jeremysutton.co.nz