Cristina Court


Family and Matrimonial

The issue of mental capacity on divorce and separation

Cristina Court

The divorce process can be a difficult time. Though, unfortunately, this can feel all the more complicated if your partner has lost the capacity to understand the situation at hand. Health issues can surface that make it hard to assess an individual’s ability to make decisions, though there are measures available that can help to ease and make sense of the process.  

If your spouse has declining physical 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.

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.

If your spouse has a problem with their brain functioning e.g. if they have had a serious brain injury, an illness, e.g. dementia or a severe stroke then you need to check if they are able to:

  • Understand the information
  • Retain the information
  • Use the information to weigh up the situation
  • Communicate their decision e.g. by squeezing a hand.


Mental capacity can come and go and some people can recover mental capacity, such as after a severe stroke. There is a mental capacity Code of Practice and this must be adhered to.

If your husband or wife requires someone else to make decisions for them during a divorce, such as another family member or friend, they would be known as a 'litigation friend.' 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.

When you ask the Court to appoint a litigation friend the Court may ask for a certificate of capacity from a GP or consultant. When a litigation friend has been appointed, proceedings can commence for divorce.

With issues surrounding mental capacity, you might be interested in What is a Lasting Power of Attorney (LPA)? This article goes some way in explaining the process of appointing someone to care for the health, finances and wellbeing of the individual that may be experiencing difficulties.

If you require advice and assistance in relation to divorce/separation matters please feel free to get in touch with Cristina, or with one of our team on 0115 9888 777, 

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