Mental Capacity and Divorce   

Is it possible to divorce a person who lacks mental capacity?

Anyone contemplating divorce or dissolution of a civil partnership will have many things to consider, but you are likely to have particular concerns if your spouse suffers from a condition which impacts their mental health and their decision-making ability. The considerations will differ slightly depending on whether a lack of mental capacity is permanent, for example as a result of a serious brain injury, dementia, or Alzheimer’s disease, or if their decision-making ability comes and goes, for example due to substance misuse or bipolar disorder.

Someone’s ability to understand and make a decision will also vary according to the complexity of the decision. For example, they may agree that you no longer get on and should separate, but the negotiation of a financial settlement may be too complex an issue for them to grasp.

Matt Clemence, head of the Family Law team with Kerseys Solicitors in Suffolk and Essex. explains that; ‘There is nothing to stop you obtaining a divorce, or dissolving your civil partnership, but it will be important to establish if your spouse holds mental capacity.  If so, then the legal proceedings can continue as normal, but if they do not then additional steps and safeguards will be needed.’

It is also important to be sensitive to the fact that separation in itself is stressful, and this can affect the mental health of participants. Fortunately, the recent introduction of no-fault divorce has removed one of the significant causes of stress in the process.

Establishing mental capacity

Mental capacity refers to a person’s ability to use and understand information, to make a decision and to be able to communicate that decision.

For your spouse to have mental capacity in divorce proceedings, they must:

• understand what divorce or dissolution of the civil partnership is, and what it will mean for them;
• be able to retain information they are provided in relation to the legal process and the financial implications;
• weigh up the information provided as part of the decision-making process; and
• communicate their decisions and instructions.

If there is any doubt over whether your spouse holds capacity or not, then a medical assessment will be required.

How to divorce if my spouse has no mental capacity

It is still possible to apply for divorce and financial separation even if your spouse lacks mental capacity.

Legally, they will not be able to consent to the divorce or any financial settlement.  It will therefore be necessary for them to have someone that can act on their behalf and in their best interests in relation to decisions surrounding the divorce and financial separation.  This person is known as a ‘litigation friend’ and can be a close friend or family member.  The court will check to ensure that the litigation friend is capable of fulfilling their role in acting in your spouse’s best interest.

If no one suitable is available then you can ask the court to appoint a litigation friend for your spouse.  The Official Solicitor can act if there is no one else suitable and is known as the ‘litigation friend of last resort’.  Once a suitable person has agreed to act, then you can file for your divorce or dissolution and progress with financial separation in the usual way, but you will negotiate with the litigation friend on behalf of your spouse.

Dividing property and assets

The same statutory criteria will be used to decide the division of property, whether your spouse has mental capacity or not.

However, criteria used will include consideration being given to each of your housing needs, your income earning ability and your mental health.  If your spouse has lost capacity, further information will be required on their likely future prognosis and this may include a future requirement for care.

Each case will be different, depending on the facts.

What if my spouse has capacity, but is unwell?

If your spouse is deemed to have capacity following a medical assessment, but you are still concerned that they are mentally unwell then it is important that their capacity is kept under review.

For example, this may mean obtaining a reassessment of their capacity just prior to any financial settlement being agreed and signed.

Mental capacity can fluctuate, and it is not unusual for the stress of separation or court proceedings to have a significant impact.   In practice this may mean that you encounter more delays than normal in having your divorce or dissolution finalised.  A court is likely to be sympathetic in allowing your former spouse time to address their health issues.  However, the court will not allow a case to drift on indefinitely. If there are regular fluctuations in mental health which impact capacity, it may be necessary to involve a litigation friend or the Official Solicitor.

How we can help

It is a good idea to seek legal advice as soon as possible, as a mental health condition will create additional considerations and it makes sense to plan ahead. If you are contemplating divorce or dissolution of a civil partnership and you are concerned about your spouse’s mental capacity, or just want some preliminary advice on the steps involved,  please contact our specialist family lawyers at Kerseys Solicitors in Ipswich on 01473 213311 or Kerseys Solicitors in Colchester on 01206 584584 or email us at [email protected].