If one party of a divorce lacks mental capacity this can make resolving finances on divorce more complex and proceedings can take longer especially if the party lacking capacity refuses to engage.
Under the Mental Capacity Act 2005 adults are presumed to have capacity unless a formal assessment proves otherwise.
Incapacity in divorce refers to a situation where one spouse lacks the mental capacity to understand the legal proceedings, make decisions or provide instructions to a solicitor.
In this situation the person lacking capacity should have what is called a Litigation Friend appointed to act on their behalf.
The process involves proving incapacity which requires the obtaining of medical evidence.
If a person lacks capacity they become what is called a protected party requiring a Litigation Friend to act on their behalf. This could be a family member or friend. Ultimately if no suitable person is available then the Official Solicitor may be appointed.
In respect of obtaining a fair financial settlement the Court will focus heavily on the incapacitated persons future needs including care costs, housing costs and needs and reduced earning capacity.
Normally a doctor’s certificate of capacity is required to determine if a person can understand the divorce proceedings.
How can we help?
Over the years I have dealt with clients who have lacked capacity and have also acted for clients whose spouses lack capacity. This can be a complex and difficult area of law. If you require further help on this, please do not hesitate to contact Louise Scott direct.
Louise Scott is a Senior Associate in our Family Law team, she can guide and represent both Applicants and Respondents in Non-Molestation proceedings with compassion and clarity. If you would like tailored advice on this issue, please do not hesitate to get in touch.
She also advises on divorce, dissolution of civil partnerships, finances and private children disputes.
If you would like to, please contact us and we will be happy to discuss your circumstances in more detail and give you more information about the services that our family law solicitors can provide along with details of our hourly rates and fixed fee services.
For more information or advice, please call Louise or another member of our team in Derby, Leicester or Nottingham on 0800 024 1976 or contact us via our online form.
Contact usIf this article relates to a specific case/cases, please note that the facts of this case/cases are correct at the time of writing.