Divorce & Capacity

A marriage can be annulled (declared void) in England and Wales if it can be proven that one or both of the parties did not have the capacity to marry at the time of the ceremony.

When a marriage is declared void, legally this means that it did not happen in the first place and therefore there is no need for the parties to seek a divorce. If one of the parties to a marriage loses capacity after having married, this does not invalidate the marriage, though if a marriage has broken down then the process of obtaining a divorce – which can in itself be messy and unpleasant – is more complicated.

There are facts that must normally be established in order to obtain a divorce, although the introduction of no-fault divorce has eased the bitter nature of many divorces where one party is often alleged to have behaved in a particularly unreasonable way. It was generally the case that if the parties did not agree that the marriage had irretrievably broken down and the petitioner could not prove that there were sufficient grounds, they could only petition for divorce after five years of continuous separation.

However, despite changes in the law making this more difficult, divorce can be defended and when one of the parties has lost capacity, a conditional order of divorce (formerly a decree nisi) will not automatically be granted even after five years of separation. This was the case in D v S [2023] EWCOP 8.

D v S [2023] EWCOP 8

Background

This case concerned an individual (D) who had lost capacity some 17 years prior as the result of an overdose. He had separated from his wife, who had petitioned unsuccessfully for divorce on the basis of an allegation of adultery. The Court found that there was no tangible evidence to support that allegation.

Many years later, D’s wife issued a supplementary divorce petition on the basis of five years of continuous separation. However, the petition was withdrawn and D’s wife – it appeared – chose to remain married to D (who had been a successful businessman) as it would be financially advantageous to her and their children. A key motivation it appears was that D’s brothers had misappropriated funds from one of D’s companies, perhaps in a bid to keep his money away from his wife. D via his brother petitioned for divorce himself.

The case was delayed for a long period, and eventually, an application was made to the Court of Protection to determine whether divorce was in D’s “best interests”. D had been represented in the stayed divorce proceedings by a litigation friend – his brother – who was removed as the Judge was satisfied that D’s brother had not been acting in D’s best interests. A new litigation friend, an old friend of D, was appointed. The individual in question was noted by the Judge to have “brought D’s personality into the Courtroom”. The account that Mr Justice Hayden recounted in his judgment was very moving. It was also stated that D was being looked after by his parents and his brothers but had no contact with his children.

D’s capacity was assessed by a consultant in neurorehabilitation who determined that D’s injury was very severe and he was unable to answer the simplest of questions. He had very limited capacity to communicate, and the Court determined that he lacked the capacity to consent to divorce. The Court, therefore, had to decide whether it was in his best interests to divorce his wife and the evidence from D’s friend was helpful in this respect. The Judge found that, in the context of D’s wife not having seen him for many years, and the parties both having accepted their marriage was over prior to the overdose, “the core features of what constitutes a marriage have inevitably evaporated”.

There was some surprise from D’s litigation friend, and it seems, from the Judge, that prior to the overdose the parties had become estranged and neither seemed interested in rescuing their marriage. However, in view of this, the Court decided that D’s historic wishes appeared to be to live separately from his wife and this was enough for the Court to declare that it was in D’s best interests to divorce her.

Comment

Whilst the facts, in this case, were not straightforward and the timespan of the divorce proceedings very protracted, the Court of Protection could not simply rubber stamp the parties’ divorce petitions.

The Court examined the parties’ historic actions, D’s character, his wishes and feelings, and his values, and of course the current status of the parties’ (lack of) relationship. Capacity evidence was of course necessary to find out whether D could make any decisions in relation to his marriage – in this case, unfortunately, he could not even make “the most rudimentary decisions”. This will not always be the case – not everybody who lacks capacity has no capacity in any respect and in the future, we could see some decisions which differ greatly from this depending on the level of capacity the protected party in question has.