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


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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.

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What our clients say about Consilia Legal on

  • review rating 5  I was most impressed with the speed and efficiency which Andy Boyde at Consilia Legal handled my case. I selected Consilia Legal after reviewing previous feedback which had positive comments regarding the areas I was interested in. The way my case was handled turned a stressful situation into a quick and stress free process. I would have no hesitation in recommending Consilia Legal.

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  • review rating 5  Received a really good service from Marie and the team including Emma, who offered valuable support throughout. I contacted Consilia following a recommendation from a union representative. Was given great advise through her trusted associate who offered an accurate and professional assessment. Marie secured a really good outcome due to her knowledge, perseverance, conscientiousness and genuine desire to try and get the best outcome on my behalf. A lot of genuine empathy and respect expressed and a brilliant negotiator. Very well informed, experienced and brilliant communicator. True to her word re costs as discussion was upfront and honest. Very reasonable rate compared to other firms. Would recommend to others Thank you very much!

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  • review rating 5  Excellent service from Laura Clapton guiding me through a difficult divorce process. Super efficient, professional and carries out the work with understanding and compassion for your situation. Would highly recommend and have already recommended.

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  • review rating 5  I was recommended Andy Boyde of Consilia Legal by a good friend in the profession to handle a personal issue. Dealing with Andy has been a pleasure from start to finish. Calls and emails were answered and dealt with in a timely manner and he gave a great deal of attention to run through legal jargon in layman's terms. Thoroughly recommended.

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  • review rating 5  Very quick and reassuring response from Andy and the team here after a very difficult situation at work. Referred from Citizen Advice Bureau because all other firms seemed less bothered about my needs versus their fees. Andy gave great advice and helped explore my options so I could respond appropriately without being cornered by my work. Ended up with a very amicable outcome! In difficult times you need people like Consilia to help guide and support you... thanks guys

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  • review rating 5  I would have no hesitation in recommending Consilia Legal. Being in the more than capable hands of Marie & Andy collectively, helped me through an employment issue, which was difficult at times. However the support I received was highly proffessional, with a very caring approach at all times & they guided me through the process. Thank you so much. Elaine

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