The question sometimes arises in a divorce as to whether one or both parties have mental capacity to litigate. If a party lacks mental capacity, it is possible to divorce but they will need someone (a ‘litigation friend’) to make decisions for them during the divorce process. There may be reasons why parties may choose not to divorce in these circumstances which are explored below.

Who can be a litigation friend?

Someone may already be appointed as a power of attorney or there may be a court-appointed deputy who could become the litigation friend but it can be a family member or friend if they are the best person. 

The litigation friend must:

  • Consent to act;
  • Be able to fairly and competently conduct proceedings on behalf of the protected party;
  • Have no interest adverse to the party lacking capacity; and 
  • Agree to pay any costs which the protected party might be ordered to pay, subject to the right to recover from the protected party.

Is expert evidence required?

If there is a question mark over whether a party has capacity, we as lawyers will need to clarify the issue of capacity urgently, which usually results in an expert medical report being obtained before the divorce can proceed. Whilst capacity can fluctuate, usually where someone is suffering from an illness, such as Alzheimer’s for example, it is probably unlikely that they will regain capacity. We always need to be alive to the possibility of fluctuation when acting for such clients. We will also seek confirmation as to whether capacity has been permanently lost in the expert advice we obtain.  

How will the lack of capacity affect the divorce proceedings and financial settlement?

The marriage may not in fact be at an end where one party lacks capacity, but the other party may simply want to protect their assets. They may therefore choose not to obtain a divorce and instead apply for a judicial separation which would mean a financial settlement can be achieved without actually ending the marriage. However, in these circumstances, parties need to be alive to the fact that you cannot obtain a complete clean break or deal with pensions by way of a judicial separation and would instead need to get divorced to achieve this. 

A person who lacks capacity, for example with Alzheimer’s, may have increased income and capital needs due to carers or residential care home fees. This will need to be carefully considered when discussing settlement. 

Divorce is difficult for anyone but in circumstances where you have one party who lacks capacity the normal concerns can be exacerbated for spouses who may feel guilt due to them divorcing their spouse for reasons beyond that persons control, such as an illness. 

The team at Watson Morris Family Law  will have these practical and emotional considerations at the forefront of our minds when acting for or against clients who lack capacity.

Written by Faye Wright

October 23, 2022

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