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18/09/2017 By: Sophie Whitehead
If you have concerns about your spouse’s ability to understand and give consent during divorce proceedings, it is important to address this issue sooner rather than later. Any agreement that is reached with your spouse may later be deemed to be unenforceable if they did not have the required mental capacity to consent at the time that the agreement was reached.
How do I establish if my spouse has mental capacity?
Lack of mental capacity may arise as a result of mental illness, dementia or a brain injury. Under English and Welsh law, a person’s mental capacity is judged according to the specific decision to be made. Where a decision is to be made regarding the terms of a financial settlement, for example, your spouse must be able to understand the relevant information relating to the settlement, retain that information and use the information to make an informed decision.
If there are doubts over your spouse’s capacity, then an expert assessment should be undertaken by a doctor, focusing on their ability to make the specific decisions that need to be made.
What if the doctor decides that he/she lacks capacity?
If it is decided that your spouse lacks capacity, then a “litigation friend” may be appointed to make decisions relating to the divorce for them, in their best interests. This could be a friend or relative, provided that their interests do not conflict with those of your spouse. You would not be able to act as their litigation friend.
If no suitable litigation friend can be found then the Court of Protection will appoint a deputy to make decisions on your spouse’s behalf.
It is advisable for both you and your spouse to seek independent legal advice. The family team at Mills & Reeve have extensive experience in dealing with these issues and can guide you through the divorce process in a sensitive and pragmatic way.