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Capacity issues and Divorce

Posted on 13th July 2023 in Family Law

Posted by

Aimee Aspinall

Senior Associate & Solicitor
Capacity issues and Divorce

People are living longer and as a result in the number of older couples divorcing is increasing. The trend of older couples divorcing is giving rise to capacity issues within the legal system. See our previous insight on divorce in later life.

The capacity issues stem from various factors. Firstly, the complexity of divorce cases involving older couples is often higher due to the accumulation of assets, retirement plans, and potential health concerns. These cases require more time and resources to be properly addressed.

Additionally, the emotional toll of divorce on older individuals can be immense. After spending a significant portion of their lives together, the decision to separate can be particularly challenging. As a result, these cases often involve more extensive negotiations and mediation, prolonging the legal process.

Older individuals may require additional assistance in navigating the legal system, understanding their rights, and ensuring their financial security post-divorce. However, the current capacity constraints make it difficult for courts to provide the necessary resources and support to meet these specific needs.

To address these capacity issues, it is crucial for the legal system to adapt and allocate additional resources to handle the growing number of divorce cases among older couples.

One of the tricky issues that comes up more and more frequently, particularly with elderly couples, although not exclusive to such cases, is when one party lacks the capacity to deal with their affairs, including personally instructing a solicitor and engaging in litigation.

To participate in family proceedings, such as divorce, a person must possess what is known as litigation capacity. Mental capacity is usually assessed by a GP conducting a capacity assessment, however there are specific agencies that can undertake the assessments if required.

Can you divorce a spouse who lacks capacity?

It is still possible to divorce a spouse who lacks capacity. They will not be able to engage personally in any proceedings, but in such cases a person will be appointed to make decisions for them. That person is called a litigation friend.

A litigation friend can be a family member, friend or some other person willing and able to assist them. If there is no one suitable or willing, then the court will appoint someone, often the Official Solicitor (OS) although the OS must agree to do so.

What is a litigation friend?

The process of appointing a litigation friend can have the consequence of delaying the proceedings as there are further hurdles to overcome. The process can become frustrating as it can feel as though little progress is being made, but once the litigation friend has been appointed it should be possible for the proceedings to continue as ‘normal’.

The litigation friend will usually instruct a family lawyer to advise them on the individual’s behalf.

The litigation friend will make decisions in the best interests of the individual, in respect of both a divorce and financial arrangements. There may be additional factors to consider such as care requirements, and the family lawyer will provide the necessary advice to the litigation friend to enable decisions to be made.

We regularly advise parties seeking a divorce from their spouse who lacks capacity. We are also regularly instructed by litigation friends on behalf of individuals who lack capacity and have received notice that their spouse wants to divorce.

How can we help?

If you require any further advice on the divorce process or require assistance to proceed with a divorce, please do not hesitate to contact our specialist Divorce and Finances Team. 

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