Can you still divorce someone who has lost mental capacity?

Divorce can be stressful, sometimes so stressful that it has a severe impact on the mental health of one of the parties concerned at the same time as the legal aspects are being negotiated.

Or perhaps there is a pre-existing concern or condition.

Having a sympathetic and experienced solicitor on side is more important than ever at a time like this to ensure that any agreements made are secure and legally binding and that everything is handled in a sensitive way.

This is where Wards Solicitors’ specialist Family Team has the expertise and specialist knowledge to help, making it possible to move safely forward with divorce and financial remedy proceedings.

What is mental capacity?

When it comes to divorce and litigation/court proceedings, the key concern is whether someone has the capacity to understand the divorce proceedings, to provide instructions and agree to the divorce and the financial settlement in real time.

In this situation, someone’s mental capacity is judged on whether they can make decisions directly related to the divorce and litigation itself including:

• The arrangements regarding children.
• The ins and outs of the financial settlement.
• The funding of the proceedings and the implications of Orders for costs.
• The need to compromise and negotiate.
• The ability to weigh up the relevant information.

These aspects are all vital as if a financial settlement is agreed and it turns out one party lacked mental capacity at the time, it can be open to appeal later.

How must mental capacity be assessed in divorce proceedings?

If there is a concern that someone has lost capacity, a capacity assessment must be sought by their legal advisor before commencing any proceedings and before any financial agreement is signed off.

This can be carried out by a GP, a treating consultant, a nurse or social worker focusing on whether the person can understand the divorce information and retain and analyse it as part of their decision-making process.

Can a divorce still go ahead if one party lacks mental capacity?

Yes, it can. And this applies whether someone has temporarily lost mental capacity because of the stress of divorce or is affected, possibly permanently, by a brain injury, a degenerative illness or problems with drink or drugs.

In all these situations, the person who lacks mental capacity must have someone appointed to help them and make decisions for them during the divorce.

This helper is called a litigation friend, often a family member or close friend, and Wards specialist family solicitors can talk you through everything that needs to be done to fulfil the legalities of appointing one.

Get in touch

Wards Solicitors wins high praise in the 2023 edition of the independent Legal 500 guide of outstanding legal professionals for its exceptional professional service standards and high levels of technical expertise.

We have seven family and divorce law legal specialists and 13 offices across Bristol, South Gloucestershire, Bath and North East Somerset and North Somerset.

Our Family Law page here has further information on divorce and frequently asked questions.

• We offer, where appropriate, a free initial half hour consultation to explain the divorce process clearly, outline all your options and help you make a plan for going forward.
• In addition, we have a range of divorce fixed fee packages we can discuss with you at your consultation.