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Can I get a divorce if my husband or wife lacks mental capacity?
In England and Wales, you can apply for a divorce if you have been married for over a year and your relationship has permanently broken down.
It is often appropriate for your solicitor to discuss your intention to divorce with your spouse and to provide a draft of your proposed divorce petition before proceedings are sent to the Court. The aim is to agree a way forward with your spouse which allows the divorce to proceed as amicably as possible, and allows efforts to be focused on working to resolve financial matters between you and /or the future arrangements for the children.
What is the position however if your husband or wife lacks mental capacity and is unable to either agree to a divorce or take part in a divorce case ?
This undoubtedly makes what is already likely to be an emotionally difficult and draining time more challenging. However, your spouse’s mental incapacity does not mean that you cannot get divorced and resolve other issues arising from your separation.
Under the law in England and Wales a person’s mental capacity is judged according to the decision that needs to be made. For example, can that person understand the relevant information relating to a divorce and/or financial settlement to enable them to make an informed decision ?
If there are doubts about a person’s capacity to make decisions, a medical professional must undertake a capacity assessment. If the medical evidence determines that your spouse does lack the necessary mental capacity, they will need someone to make decisions on their behalf during the divorce and financial proceedings. This person is called a “litigation friend” and can be a family member, close friend or other third party who can represent them.
Litigation friends can make an application to the court to be appointed on behalf of a spouse who does not have capacity. If there is no one suitable or willing to act as your spouse’s litigation friend, you can apply to the Court to appoint a litigation friend for your spouse.
The court will check if the proposed litigation friend is suitable by making sure that their interests do not conflict with those of your spouse and that they can make decisions about the case in a fair and competent way.
When there is no-one suitable, willing or able to be a litigation friend, the court may invite the Official Solicitor to act as your spouse’s “litigation friend of last resort”, although this is not necessarily straightforward and consideration has to be given to other factors such as how the case will be funded.
If your spouse recovers capacity during the proceedings, the litigation friend may need to apply to bring their appointment to an end. The court can replace a litigation friend if they do not carry out their duties properly.
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