Divorce and Issues of Capacity

At Consilia Legal, we have a wealth of experience dealing with divorce & issues of capacity matters.

An individual needs to have what is known as litigation capacity when involved in any type of family law proceedings including divorce. This means that they need to have the mental capacity to engage in the proceedings as well as be able to give their solicitor clear instructions if they are legally represented.


Assessing capacity

As defined within the Mental Capacity Act 2005, “a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.”

Capacity is usually assessed by way of a GP or consultant conducting a capacity assessment and subsequently producing a certificate confirming their assessment.

The medical practitioner’s assessment is based on the individual ability to conduct the specific proceedings in question as opposed to their general ability to make decisions for themselves.

In the event that an individual is found to not have capacity to engage in their proceedings then the court will need to appoint either a litigation friend or the Official Solicitor on behalf of the individual.


Role of a litigation friend/Official Solicitor

A litigation friend is there to act in the best interests of the individual and progress the case for them. This is usually someone that the individual knows, for example, a family member or a trusted friend, however, in the event that no one appropriate is available, the Official Solicitor will be appointed as the individual’s litigation friend.

The litigation friend/Official Solicitor usually instructs a family solicitor when the individual is involved in divorce and associated finance or children proceedings in order to receive specific family law advice to aid them in making decisions in the best interests of the individual.

As long as it is deemed appropriate, the family solicitor may arrange to meet with the individual and explain the roles of both their role and that of the litigation friend/Official Solicitor and how everyone will be working together on their matter. It is also an opportunity to for the family solicitor to gain the individual’s personal views and feelings on their matter.

Even if a litigation friend/Official Solicitor is appointed, it is important to keep an individual informed as to the progress of their case and obtain their wishes and feelings on matters as long as it would not cause them any harm. The litigation friend/Official Solicitor will still, however, be the one giving instructions to the family solicitor.


When an individual contests the capacity assessment/their mental state improves

There may be circumstances where an individual disagrees that they lack capacity to conduct proceedings and it is possible for them to contest the capacity assessment. It then falls down to the Court to decide whether to endorse the medical practitioner’s capacity assessment before the litigation friend/Official Solicitor is involved in the proceedings.

Similarly, should an individual’s mental state improve, a further capacity assessment should be obtained. If the medical practitioner assesses the individual as having regained capacity then the litigation friend/Official Solicitor must stop acting and all instructions to the family solicitor going forward should be given directly by the individual themselves.

At Consilia Legal, our Director and Family Solicitor, Laura Clapton is highly experienced in dealing with matrimonial cases where an individual lacks capacity. If you would like to have a confidential discussion surrounding this issue please contact Laura on 0113 322 922 or laura@consilialegal.co.uk


Contact Sarah

What Our Clients Say About Our Family Law Services

Laura Clapton has been brilliant and very professional through the Mediation process. I highly recommend her.

Jen Huggett

Absolutely five star service from Laura Clapton and her team, always kept informed of progress, and Laura was always available on the end of the phone to answer any questions. Highly recommended, thank you Consilia Legal.

Jane C

Professional and personal. Vicky was very caring and listened to my issue, advice was clear and easy to understand. Vicky ensured my mind was at ease and I knew my options. Excellent service. Sarah really knows the family sector, she puts you at ease instantly and ensures you are aware of all the options. Would definitely recommend this service. Thank you for your help.

Catherine White

Vicky guided me through the legal context of an employment and was very efficent, approachable and supportive. I would highly recommend this company and Vicky to others who need legal support and advice. Many thanks.

Maureen Sheridan

Had a great experience working with Victoria. Felt completely comfortable asking all kinds of questions and she always explained them really well.

Julia Mariani

I often get clients asking if I can assist with employment and family matters. As this is not my area of specialism I am conscious to help assist by passing them onto a trusted source who will look after the client in the best manner possible and with the same approach and ethos as myself. For employment and family matters I recommend to Consilia Legal as they contact the client promptly and provide practical no nonsense advice at a great value. I have no hesitation in recommending their services and will continue to direct my clients to them for this type of legal advice.

John Bailes

What our clients say about Consilia Legal on

  • review rating 5  Professional and received good customer service. I would really recommend them as they helped me to negotiate my way out of a difficult work situation on the best terms possible. Andy was very polite and knowledgable.

    thumb Diane Holden
  • review rating 5  Superb professional, supportive & friendly service by Laura and her colleagues. Their responses to both emails and telephone calls were quick and precise. I could and not of asked for a better service during a very difficult period, and would not hesitate to use again. Steve

    thumb Steve Wallis
  • review rating 5  I recently had occasion to require the services of an employment lawyer and was recommended to this firm by a professional colleague. I have dealt with many lawyers around the world in the most complex business transactions and personally. I can honestly say I have never received the level of consideration and service from any other legal firm to match that of Consilia Legal. From the moment they picked up the phone to my initial call to the matter being finalised in record quick time; their service and attention to detail was never less than exemplary. Their legal advice was also spot on. It is extraordinary to see this level of service across every aspect of a business and it is a huge credit to Marie Walsh and her team (especially Emma Cartlidge) that they are all able to make their clients feel so welcome and so cared for. I would heartily recommend them to anyone.

    thumb Stephen Wilson
  • review rating 5  Excellent personal support, advice and understanding from Marie, Emma and the Team, thanks for all you have done. Highly recommended

    thumb Ian Reed
  • review rating 5  Marie Walsh is undoubtedly the best employment solicitor in Leeds, if not the whole of Yorkshire. I always knew this from her great reputation and she recently assisted me with a very complex and difficult matter. Marie handled the situation with a pragmatic approach and endless patience. I cannot recommend her enough - she is an absolute superstar! I also dealt with Andy Boyde in her absence who was extremely professional and great to deal with.

    thumb Bin Sparkes
  • review rating 5  I was delighted with the advice and help Andy gave me. He was extremely helpful in a very stressful time and I would highly recommend anyone looking for legal advice - FIRST CLASS !!

    thumb Nick Hall
  • review rating 5  I recently needed legal help with a settlement agreement post a redundancy. I have never had the need to use a solicitor's services before. Going by the great reviews on Consilia I decided to give their services a go. I had the pleasure to be attended by Emma Cartlidge and she made the experience simple and easy. The offer was reviewed and amended with precision and I needn't worry about anything. I would recommend Consilia to anyone nervous about using legal services and in need of employment law advice.

    thumb mszkamio .

Latest articles

The mediation process

The Mediation Assessment Meeting

Conversations About the Mediation Information and Assessment Meeting As part of Family Mediation Week and to raise awareness of the benefits of mediation, I will...
family mediation

Family Mediation Week 2020

As part of Family Mediation Week and to raise awareness of the benefits of mediation, I will be offering free initial mediation assessment meetings (MIAM)...
can i be made to sell my business in divorce?

Can I be made to sell my business on divorce?

Where either or both parties to a divorce have an interest in a business, this will often bear relevance to the division of assets between...


4 Park Place,
West Yorkshire,

 0113 322 9222

Get In Touch


(By Appointment Only)

Windsor House,
Cornwall Road,

 01423 222 220

Got a question?
Get in touch!