Can I Still Obtain a Divorce If My Spouse Does Not Have Capacity?

When does a person lack capacity?

A person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. It does not matter whether the impairment or disturbance is permanent or temporary.

A person lacks the capacity to make a decision if he is unable to:

• understand the information relevant to the decision
• retain that information
• use or weigh that information as part of the process of making the decision, or
• communicate his decision (whether by talking, using sign language or any other means)

Medical evidence

A Capacity Report will need to be obtained from a medical professional to assess capacity. Capacity is ‘decision specific’ and is assessed according to each decision that needs to be taken.

Appointing a Litigation Friend

If you wish to issue Divorce proceedings and your spouse lacks capacity then they will need to have a Litigation Friend appointed by the Court. You cannot be the Litigation Friend as there would be a conflict of interest. An Application for a Litigation Friend will need to be made by the potential Litigation Friend supported by medical evidence. If the Court grants the Application an Order will be drawn up confirming that.

Duties of a Litigation Friend

The Litigation Friend must ‘direct the proceedings’ on behalf of the person who lacks capacity. A Litigation Friend must:

• make decisions in the person’s best interests
• do everything they can to tell the person what is happening in the case and find out their wishes and feelings
• talk to the person’s solicitor about what is happening (if they have one), obtain advice from the solicitor and give instructions to the solicitor in the person’s best interests, and
• pay any Costs Orders ordered by the Court

What happens is there is no-one who can be Litigation Friend?

If there is no-one suitable or willing to act as Litigation Friend then the Official Solicitor can act as Litigation Friend.

Please note the above is for information purposes only and is intended to be a short summary. It should not be treated as a comprehensive guide and should not be acted on without qualified legal advice.