How a Spouse Lacking Mental Capacity affects the Divorce
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If Spouse Lacks Mental Capacity

Divorce if a Spouse Lacks Mental Capacity

Divorces become even more emotional if a husband or wife suffers mental health problems. Lacking the capacity to make your own decisions brings extra challenges to the divorce process.

So, the question is; how do you get divorced if your husband or your wife lacks mental capacity?

They are unlikely to have the ability to agree to a divorce or to take part in the proceedings.

There are situations when you might need to make decisions on behalf of someone - now or in the future. The divorce process is one of them.

In cases such as this, the husband or the wife needs someone to make decisions on their behalf. A 'litigation friend' is someone who acts on their behalf.

Note: The person who represents them can be a family member, a close friend, or someone unknown to them.

What if You Don't have a Litigation Friend?

There may be times when no one suitable is willing to act as a litigation friend. In this case, you can apply to the court and ask them to appoint a litigation friend.

The court might appoint the Official Solicitor to act on behalf of your husband (or your wife). The process uses a 'litigation friend of last resort' when there is no one else to do it.

Applying to the Official Solicitor

  1. The first step is checking to see if anybody else is suitable and willing to act as your spouse's litigation friend.
  2. If not, you should make sure money is available to pay for any costs the Official Solicitor has to make. But, in some cases your husband or wife may qualify to get legal aid.
  3. The court will ask for a certificate of capacity. So, you should give the details of your husband's (or wife's) doctor or other medical professional to the court.

If the Official Solicitor Agrees

In most cases, the Official Solicitor will agree to act as a litigation friend during a divorce if your husband or wife lacks mental capacity. Acceptance means you will then be able to file for a divorce.

Contacting the Staff of the Official Solicitor

If you contact the private family law team they will not be able to answer general questions on getting divorced. But, they can give advice about divorcing someone who lacks mental capacity.

Official Solicitor (private family law team)
Email: ospt.dsm@offsol.gsi.gov.uk
Telephone: 020 3681 2754
Check charges to 020 phone numbers.

ALSO IN THIS SECTION

How to Apply for a Divorce | A list of things you need and how much it costs to dissolve a marriage.

Reasons to Get a Divorce | Five ways to prove a marriage has broken down to justify the proceedings.

How to Get a Divorce when a Spouse Lacks Mental Capacity