Divorce and Issues of Capacity

When an individual is involved in any type of family law proceedings including divorce, they need to have the mental capacity to be able to participate within the proceedings and if legally represented they need to give their solicitor clear instructions on how they would like to progress their case. This is known as litigation capacity.

What if a person lacks capacity?

If an individual lacks the capacity to participate in the court proceedings (within the definition of the Mental Capacity Act 2005), the court will need to appoint a person to act in the best interests of the individual and progress their case for them, known as a litigation friend. A litigation friend can be a friend or family member or some other person known to the individual. If an appropriate person is not available to act as a litigation friend then the court will want to appoint the Official Solicitor to act as litigation friend for the individual. The Official Solicitor will act in the individual’s best interests and will make decisions on how to progress the case in order to achieve the best outcome for the individual concerned.

In cases where the individual is involved in divorce proceedings and possibly proceedings relating to finances or children, the litigation friend/Official Solicitor will want to instruct a specialist family solicitor to advise them on matters of family law to help the appointed person make decisions in the best interest of the individual within the parameters of the law.

How do you know if a person lacks capacity?

The issue of whether a person has sufficient mental capacity to participate in their court proceedings is assessed on a case by case basis and it is usually necessary to ask their GP or treating consultant to conduct a capacity assessment and produce a certificate. If the medical practitioner assesses that the individual does not have sufficient capacity then a litigation friend/Official Solicitor should then be appointed.

Can the individual contest the capacity assessment?

Yes, it is possible for an individual to contest the capacity assessment which states they lack capacity. If that happens, then the court will need to make a determination as to whether to endorse the capacity assessment before the litigation friend/Official Solicitor can become involved in the case.

Can the individual still be involved in their case?

Yes, if it is appropriate. Where it would not cause the individual harm, it is important to keep them informed of how their case is progressing and listen to their views on how they would like the case to conclude. Ultimately however the family solicitor will take their instructions from the litigation friend/Official Solicitor.

What if a person’s mental state improves during the proceedings?

If a person is assessed as lacking capacity but their mental state improves it would be sensible to obtain a further capacity assessment. If the further assessment confirms that the individual has regained capacity, the litigation friend/Official Solicitor must stop acting and the individual should be able to give instructions directly to their solicitor and fully participate in the proceedings.

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 Us

Got a question?
Get in touch!