Divorce and mental capacity is a strong talking point within the industry.

The question sometimes arises in divorce cases as to whether one or both parties have the necessary mental capacity to take part in the proceeding. Issues surrounding mental capacity can often arise as a result of illness or injury.

What is mental capacity?

Under the Mental Capacity Act 2005, someone is capable of making their own decisions if they can:

  • Understand the information they need to make their decision.
  • Remember the information.
  • Apply that information to making their decision using reasoning and analysis.
  • Communicate what their decision is.

If someone is considered to lack mental capacity, it means they lack the capacity to make a specific decision on a specific matter or take a specific action for themselves. Capacity is related to the specific facts of the case and the decisions which must be taken. For example, a person can be considered to have capacity to decide that they want to be divorced or to make a Will but still lack capacity to understand the minutiae of their financial affairs and require assistance.

Legal position on divorce and mental capacity

The legal position when it comes to divorce and mental capacity is that a party is assumed to have capacity unless it is established that they lack capacity.

In the context of family proceedings, capacity may be relevant as to both capacity to litigate and to compromise proceedings. This includes to agree the terms of a consent order. Capacity includes having a clear understanding of how the proceedings are to be funded, the prospects of success, the risk of a costs order, the need to give proper instructions and to approve a compromise. In a leading case on this subject the court ruled that an agreement and subsequent consent order made by a party who was in fact incapacitated will not be valid and should be set aside.

In divorce cases where there are concerns as to the mental capacity of a party who is represented, the first step will be to raise that possibility with the party’s legal representative and if necessary, draw any concerns to the attention of the court and seek directions.

Under English law a person who lacks mental capacity is a protected party and must have a litigation friend to conduct proceedings on their behalf. A litigation friend will normally be a deputy appointed by the Court of Protection to make decisions on behalf of a person who lacks capacity in relation to their personal welfare or property and affairs.

Who can be a litigation friend when mental capacity affects divorce?

If there is no deputy another person may act as a litigation friend if that person:

  • Consents to act.
  • Can fairly and competently conduct proceedings on behalf of the protected party.
  • Has no interest adverse to that of the protected party, and
  • Undertakes to pay any costs which the protected party may be ordered to pay in relation to the proceedings, subject to any right they may have to be repaid from the assets of the protected party. 

Any person wishing to be appointed as a litigation friend (other than a deputy appointed by the court of protection) must file a certificate of suitability in a standard court format stating that they satisfy the conditions specified above.

If a party lacks mental capacity, they will need someone to help them to make decisions during the divorce process and to help when giving instructions to their solicitors. This is the role of the litigation friend who’s duties to the protected party are to:

  • make decisions in their best interests
  • do everything you can to tell them what’s happening in the case and find out their wishes and feelings
  • talk to their solicitor about what’s happening, get advice from them and give instructions to them in the other person’s best interests
  • pay any costs ordered by the court

Is expert evidence of mental capacity required during divorce proceedings?

An assessment by a doctor or medical professional is often required to assess a person’s mental capacity to give instructions to a solicitor and conduct legal proceedings.

If there is uncertainty as to whether a party has mental capacity, we as lawyers will need to clarify the issue of capacity urgently. This 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. The medical expert will be asked to advise whether in their opinion the loss of capacity is permanent, temporary or relates to some decisions but not others.

You can apply to be a litigation friend by filing a certificate of suitability with the court. This must be served on any appointed deputy, any attorney with a lasting power of attorney or enduring power of attorney, the carer of the adult you want to be litigation friend for and on the ‘protected party’ themselves.

How will the lack of mental 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 they 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 mental capacity due to illness or injury, may have increased income and capital needs due to the need to engage professional carers or meet residential care home fees. These costs will need to be carefully considered within any negotiations leading to a settlement. They may also lack any capacity to support themselves through employment which is also a relevant consideration. If financial resources are tight, these factors may well justify a departure from the court’s equal sharing principle in favour of the protected party.

How Watson Morris can help with divorce and mental capacity

Divorce is difficult for anyone, but in circumstances where one party lacks mental capacity these concerns can be exacerbated.

For the team at Watson Morris Family Law LLP, the wellbeing of our clients and their family are our first concern. We will have these practical and emotional considerations at the forefront of our minds when one of the parties lacks mental capacity during divorce.

For an initial discussion to see how we can help, at no cost or obligation, please contact us.

Written by Faye Wright

May 4, 2023

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