What happens if a former partner lacks capacity to engage in divorce proceedings?

Circumstances involving a loss of mental capacity are often sensitive and complex – particularly when they arise alongside the breakdown of a relationship and the onset of a divorce.

When one partner no longer has the capacity to engage directly with the process, there may be concerns about fairness, protection and potential legal obstacles to ensuring an outcome that’s fair for everyone involved.

However, it’s important to know that the law in England and Wales does allow separating couples who find themselves in this situation to move forward with divorce proceedings, provided the correct steps are followed.

Here, we explain how the concept of capacity is approached in this context and take a look at how the courts typically deal with these situations – as well as outline important considerations for anyone facing this scenario.

What do we mean by a ‘lack of capacity’?

In legal contexts, ‘capacity’ refers to a person’s ability to understand, make and communicate decisions on their own behalf. A person is presumed to have capacity unless it is shown otherwise under the principles set out in the Mental Capacity Act 2005.

Critically, the law considers an individual’s capacity to be decision specific. This means someone may be able to make some decisions – for example, deciding to end a marriage – but not others, such as managing complex financial arrangements.

A lack of capacity may arise due to health complications or serious injuries, including but not limited to:

• Dementia or cognitive decline
• Brain injury
• Learning disabilities
• Severe mental illness

If there are any concerns about a party’s ability to participate in divorce proceedings, it’s crucial that these be raised as early as possible (with supporting medical evidence where applicable).

Can individuals lacking capacity still get divorced?

Put simply, yes: a divorce can still proceed even if one spouse lacks the ability to engage with the process.

However, the court will not allow proceedings to continue in the usual way unless safeguards are in place to ensure the vulnerable party is protected.

This is where enlisting a litigation friend becomes essential.

What is a ‘litigation friend’?

A person who lacks capacity to take part in legal proceedings is considered a ‘protected party’ by Family courts – and so their participation in the process is dependent on having what’s known as a ‘litigation friend’ to act on their behalf.

A litigation friend is an individual – usually a close friend, family member or court-appointed deputy (under the Court of Protection) – who is nominated to:

• Make decisions about the case
• Instruct solicitors
• Ensure that the person’s best interests are protected
• Represent their position throughout the proceedings

The court requires that the litigation friend acts fairly, is free from any conflicting interests and is able to engage with proceedings competently.

In circumstances where no appropriate person is available to fulfil the role, the court may appoint the Official Solicitor to act as a ‘last resort’ litigation friend.

Divorce when one party lacks capacity: how does the process work?

Where a spouse’s capacity is in question, the divorce process typically involves:

1. Raising concerns early – any doubts about a party’s capacity should be identified at the outset
2. Obtaining medical evidence – a medical professional may be asked to assess and confirm whether the individual lacks capacity to participate in their own divorce proceedings
3. Appointing a litigation friend – if the capacity concerns are upheld, the divorce cannot meaningfully progress until a litigation friend is formally in place
4. Proceeding with the divorce – once suitable representation is arranged, the case can continue in broadly the usual manner (with the litigation friend acting on behalf of the protected party)

It’s worth noting that divorces involving a litigation friend can result in delays and additional complexity.

What other issues need to be considered?

Despite the litigation friend’s ability to act on the protected person’s behalf, there are still some additional considerations to be aware of – for example:

Timing and delays

Even when the separation arrangements seem simple on paper, the need for capacity assessments and appointment of a litigation friend can slow the process down.

This can be frustrating; however, these extra steps are necessary to ensure fairness and compliance with the legal process.

Costs and additional funding requirements

The increased complexity of these cases may mean there are extra legal costs involved – particularly when:

• The Official Solicitor becomes involved
• Expert medical assessments are required

In some cases, legal aid may be available for the party lacking capacity, so it’s crucial to speak to your solicitor about potential support options as early as possible.

The vulnerable party’s best interests

All decisions made on behalf of a person lacking capacity must be in their best interests (in line with the Mental Capacity Act).

In addition, the litigation friend should take the person’s wishes and feelings into account as far as this is feasible.

Financial settlements

Capacity issues often have a significant impact on a person’s financial arrangements.

With this in mind, the court is likely to pay particular attention to:

• The vulnerable party’s long-term care and financial needs
• Their ability to generate income
• The impact of any physical or mental disability

These factors can lead to a more protective or needs-based outcome in terms of a final settlement.

Court oversight

When capacity is a factor, the court will take a more active role in ensuring that any agreement or order is fair – particularly where one party cannot advocate for themselves.

The Court of Protection may also become involved in some cases, especially those where broader decisions about the individual’s welfare or finances are required.

Get in touch

If you believe your former partner may lack capacity to engage with the divorce process, it’s essential to seek specialist legal advice on the best path forward as early as possible.

These cases require careful handling to ensure that:

• The correct legal procedures are followed
• Delays are minimised where possible
• The vulnerable individual is properly protected

However, with the right support, it’s entirely possible to navigate the process sensitively and effectively. Our friendly Divorce & Family Law team can guide you through every step, ensuring that your case is handled with care, compassion and professionalism.

Contact our experienced solicitors  on 03333 058375, or by email via [email protected], for personalised support today. We’re here to help.