You will have many things to consider when contemplating a divorce or dissolution of a civil partnership, however you may have particular concerns if your spouse suffers from a condition that impacts their mental health and decision making ability. These 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. Someone with a lack of mental capacity 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.
Olivia Clements, a Solicitor in the family team at Nalders in Falmouth explains, ‘You can still obtain a divorce or dissolve your civil partnership, but it is essential to determine whether your spouse has mental capacity. If they do, the proceedings can continue as normal. If they do not, additional safeguards will be needed.”
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 a divorce or dissolution of the civil partnership is, and what it will mean for them;
- be able to retain information that 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 may 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 be necessary for your spouse to have someone that is able to act on their behalf and in their best interests in relation to decisions surrounding the divorce and financial issues arising from the divorce. 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 may 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, which 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. 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 Olivia Clements in the family law team on 01326 313441 or email orc@nalders.co.uk. Nalders has offices in St Austell, Truro, Falmouth, Helston, Camborne, Newquay and Penzance.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.