Anyone contemplating divorce or dissolution of a civil partnership will have a lot to think about. However, this will be amplified if your spouse suffers from mental health issues that impact their decision-making ability. The factors to take into account will vary slightly based on whether the absence of mental capacity is enduring, as it would be after a significant brain injury, dementia, or Alzheimer’s disease, or if the fluctuation in decision-making ability occurs intermittently, as it would be in cases of substance misuse or bipolar disorder.

Someone’s ability to understand and make effective decisions will also vary according to the complexity of that decision. For example, they may agree that they no longer get on with their spouse and so should separate, but the negotiation of a financial settlement may be too complex an issue for them to fully understand.

Family law solicitors – expert at dealing sensitively with divorce

You can proceed with obtaining a divorce or dissolving your civil partnership; however, you must determine whether or not your spouse has sufficient mental capacity to deal with the situation. If they do, legal proceedings can proceed as usual. However, if they do not, additional steps and safeguards will be necessary.Annique Sampson, Family Law solicitor

Another key aspect that you must all recognize is that separation can be inherently stressful, impacting on the mental well-being of those involved – no matter what their underlying state of mind.

Thankfully, the recent adoption of no-fault divorce has reduced a considerable amount of stress in the procedure.

How do you assess mental capacity?

The term ‘mental capacity’ refers to someone’s ability to use and understand information, to make decisions and to communicate that decision to others.

To show that someone has mental capacity in divorce proceedings, they must:

  • know the meaning of divorce or dissolution of the civil partnership is, and what the process will mean for them;
  • assess the information provided as part of the decision-making process;
  • communicate their decisions and instructions; and
  • be capable of retaining the information they are provided with when it comes to the legal process and its financial implications.

If there is any doubt over whether your spouse has sufficient capacity, they will need to be medically assessed.

What do you do if your spouse does not meet these criteria?

You can still apply for divorce and separation if your spouse doesn’t have sufficient mental capacity.

From a legal standpoint, your spouse won’t have the capacity to approve the divorce or participate in any financial agreement. Hence, it becomes essential for them to designate a representative who can act on their behalf and in their best interests regarding decisions related to divorce and financial separation. This designated individual is referred to as a “litigation friend” and may be a trusted friend or family member. The court will assess the litigation friend’s ability to effectively fulfill their role in advocating for your spouse’s best interests.

If there’s no appropriate individual, you have the option to request the court to designate a litigation friend for your spouse. The Official Solicitor can step in as the “litigation friend of last resort” if no other suitable person is available. Once a suitable individual has consented to the role, you can proceed with filing for divorce or dissolution and continue with the customary financial separation process. However, negotiations will be conducted with the litigation friend on behalf of your spouse.

The division of property and assets

The division of property will be determined using identical statutory criteria, regardless of your spouse’s mental capacity.
However, criteria used will include consideration given to each of your needs when it comes to housing, your income earning ability and your mental health. If your spouse has lost mental capacity, more information will be need about their likely future prognosis and this may also include a future requirement for care.

Such cases differ, depending on the particular facts.

What if my spouse has mental capacity, but is mentally unwell?

If your spouse is judged to have sufficient capacity after their medical assessment, but you are still worried about their mental health, then it is important that they are kept under review.

For example, this may mean reassessing their capacity before any financial settlement is agreed and signed.

Cognitive abilities may vary, and the strain of separation or legal processes can commonly exert a substantial influence on them. This means that you might experience more than usual delays in concluding your divorce or dissolution. The court is likely to be understanding in granting your ex-spouse the necessary time to address health concerns. Nevertheless, the court will not permit an indefinite extension of the case. If they do suffer from recurring fluctuations in mental health affecting mental capacity, engaging a litigation friend or the Official Solicitor may become necessary.

How Cunningtons family law team can help

Getting legal advice early is a good idea, especially when dealing with a mental health condition, as it introduces additional factors, and proactive planning is prudent.

If you are thinking of a divorce or dissolution of a civil partnership and you are concerned about your spouse’s mental capacity, or you just want some preliminary advice on the steps you have to take, please contact Annique Sampson in the family law team on 01376 326 868 or email

Cunningtons LLP has offices in Braintree, Chelmsford and Wickford.

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