How does the lack of mental capacity affect divorce

A divorce can be a difficult time for all parties involved. Especially when there is no one to blame and the reason for the divorce is that you have both drifted apart and no longer feel the way you once did. Sadly, relationships also come to an end when one spouse is suffering mental ill health. Sometimes this can be so serious that the person no longer has legal capacity to make decisions.
If your spouse has declining mental health, the possibility of whether or not they’re able to cope and participate in divorce proceedings is something that is taken into serious consideration, but the law provides for this situation.

What is mental capacity?
Mental capacity is defined as the ability a person has to make their own choices in daily life, and the ability to make an important decision that may have significant legal consequences.
All adults have the right to make decisions themselves unless they are unable to do so. Under the Mental Capacity Act 2005, a person is assumed to have capacity unless it is established otherwise, and a spouse is not to be treated as unable to make a decision if they would be able to do so if given appropriate help.

But how do you divorce someone who doesn’t have mental capacity?
It can be a lengthy process and the law can be complicated and difficult for you to understand at the best of times, never mind when you have emotions involved.
When your spouse lacks capacity, they may have been appointed a guardian by the Court to handle their affairs such as finances and property. If this is the case, they can assist with the divorce. If no guardian has been appointed, a family member or friend can be appointed as a litigant friend by the Court. They are able to make the decisions for the spouse and handle the divorce process on their behalf. If there is no-one suitable or willing to be their litigation friend, you will need to apply to the Court to appoint a litigation friend. Where there is no-one else to do it, the Official Solicitor may agree to do so, but the Official Solicitor will have associated costs.

If you require further assistance with divorce/separation, please contact one of our team on 0161 224 3311.