Getting a Divorce When Someone Lacks Capacity

Posted: 30th September 2024
by Gemma Holmes

How can I deal with a divorce or dissolution when I, my spouse or civil partner lacks mental capacity?

Someone lacks mental capacity when their mind is impaired or disturbed which affects the way they can make decisions. Someone can lack mental capacity when they have severe learning disabilities, for instance, brain damage, or physical or mental conditions.

We have found that a catastrophic personal injury resulting in serious injuries can have a huge impact on a couple including financial and emotional strain. The breakdown of a relationship is already a distressing experience, but it can become much more difficult when someone lacks the mental capacity to make decisions for themselves in the divorce or dissolution process. This can add more pressure to an already upsetting situation. Any concerns that either party lacks mental capacity to participate in proceedings should be raised with the legal advisor at the earliest opportunity, so a formal assessment of capacity by a medical practitioner can be obtained.

When you lack the mental capacity to agree to a divorce or dissolution or to take part in a divorce or dissolution case, you will need the help of a close family member or friend to support and make decisions for you during the process. That person is called a “litigation friend”. A certificate of capacity from a medical professional will be required by the court so that a litigation friend can be appointed.

What Is a Litigation Friend?

A litigation friend will make decisions throughout a divorce or dissolution case for someone who does not have the capacity to do so themselves. Any family member or friend can be a litigation friend providing their interests do not conflict with the person getting the divorce or dissolution and they can make fair and competent decisions that are in the best interests of the person lacking capacity.

If you’re already the person’s deputy, appointed by the Court of Protection, then you’ll need to show that the court order that granted you permission to be the deputy, also allows you to act as a litigation friend. If you aren’t already a deputy, you can still apply to be a litigation friend by completing a “certificate of suitability”.

It may be that there are no suitable people to take on the role of litigation friend and instead, the court will have to appoint the “Official Solicitor”. This is someone who can act as a last resort. It’s important to note that charges could apply if the court needs to appoint the Official Solicitor, unless the person lacking capacity qualifies for legal aid.

The role of the litigation friend is to update the incapacitated person on the case and try to establish their wishes and feelings about certain matters in the divorce or dissolution process. They will also need to communicate with the person’s solicitor to be kept in the loop with the latest developments and give instructions depending on what happens. They’ll be expected to attend court hearings, pay court fees and sign legal documents on behalf of the incapacitated person.

For example, let’s say the person’s husband, wife or civil partner proposes a settlement to split the assets, the litigation friend will need to attend the financial hearings and get advice from the solicitor to understand whether the settlement should be accepted and whether it would be sufficient for the person.

Capacity is decision specific and can also fluctuate over time. It may be that a party can make certain decisions relating to divorce proceedings, but not others. If capacity fluctuates, then it may be that a certain decision will need to be postponed (where possible) until that person has regained capacity. If a party regains capacity, then a litigation friend will no longer be needed.

At EMG Solicitors, we focus on assisting clients who have received compensation for personal injuries. Our skilled team is here to support you in safeguarding your financial assets if you go through a divorce or dissolution. Additionally, we also serve as court-appointed deputies in cases where individuals who’ve experienced personal injuries need assistance with Court of Protection matters.