Member Article

The question sometimes arises in a divorce as to whether one or both parties have mental capacity to litigate. If a party lacks that mental capacity, they will need someone to make decisions for them during the divorce process. This person is called a ‘litigation friend’.

Who can be a litigation friend?

Someone may already be appointed to make decisions for the person lacking the requisite capacity under a power of attorney, or there may be a court-appointed deputy who could become the litigation friend. It can also be a family member or friend if they are the best person for the role.

The litigation friend must:

• Consent to act;
• Be able to fairly and competently conduct proceedings on behalf of the protected party;
• Have no interest adverse to the party lacking capacity; and
• Agree to pay any costs which the protected party might be ordered to pay, subject to the right to recover from the protected party.
  
  

Is expert evidence required?

If there is a question mark over whether a party has capacity, we as lawyers will need to clarify the issue of capacity urgently, which usually results in an expert medical report being obtained before the divorce can proceed. Whilst capacity can fluctuate, usually where someone is suffering from an illness, such as Alzheimer’s for example, it is probably unlikely that they will regain capacity. We always need to be alive to the possibility of fluctuation when acting for such clients and that someone may lack capacity to make some decisions, but still have the capacity to make others. We will seek confirmation as to whether capacity has been permanently lost in the expert advice we obtain.

How will the lack of capacity affect the divorce proceedings and financial settlement?

The marriage may not be at an end where one party lacks capacity and the other party may simply want to protect their assets. They may therefore choose not to obtain a divorce and instead apply for a judicial separation, which would mean a financial settlement can be achieved without actually ending the marriage. However, in these circumstances, parties need to be alive to the fact that they cannot obtain a complete clean break, or deal with pensions by way of a judicial separation and would instead need to get divorced to achieve this.

When considering a financial settlement where a person lacks capacity, for example if they have Alzheimer’s, there are additional considerations, such as having increased income and capital needs due to carer’s or residential care home fees.

Divorce is difficult for anyone, but in circumstances where you have one party who lacks capacity, the normal concerns can be exacerbated for spouses who may feel guilt due to them divorcing their spouse for reasons beyond that person’s control, such as an illness.

At Shoosmiths, we will have these practical and emotional considerations at the forefront of our minds when acting for or against clients who lack capacity.