Divorce and Mental Capacity | Family law

Recently, there has been a lot of focus on mental health, with World Mental Health Day being globally recognised on 10th October.

For many people, divorce is stressful enough, let alone if you have the additional issue of wanting to divorce a spouse who does not have mental capacity. Many people put off divorcing as they simply don’t know which way to turn.

What is Mental Capacity?

A person may be deemed as not having mental capacity if they suffer from a serious brain injury, an illness (such as dementia) and/or severe learning difficulties.

It is important to note that mental capacity can come and go, however a person is said to have capacity if they can;

  • understand the information they need
  • understand the options available to them and make a decision
  • remember the information given to them for long enough to make a decision
  • express their decision in any way (which includes blinking or squeezing a hand).

An assessment by a doctor or medical professional is the best way to assess a person’s capacity.

Can I still get divorced if my spouse doesn’t have mental capacity?

Yes, you can still apply for a divorce but your spouse will require the assistance of a “litigation friend”.  A litigation friend is someone who makes important decisions on behalf of someone who lacks mental capacity.

A family member, close friend or someone else can become a litigation friend, however if there is no one suitable, the Court can appoint someone.

The Official Solicitor is a litigation friend of last resort and may agree to act on the behalf of your spouse as a litigation friend if no one else is available.

There are costs involved when the Official Solicitor is appointed however, Legal Aid may be available.  You will have to provide details of your spouse’s doctor or medical professional so that a certificate of capacity can be obtained.

Divorce proceedings can then commence if the Official Solicitor agrees to act as a litigation friend.

At Thursfields all of our family law specialists can assist with cases where mental capacity is a concern. If you require further advice in regards to the issues raised in this article or wish to commence the divorce process, please contact Sandeep Sandhu on ssandhu@thursfields.co.uk

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