An individual could lose their mental capacity to make decisions for a number of reasons. This could occur following a serious accident, through the onset of dementia, or as a result of a mental health condition. It is wholly understandable that changes such as these are difficult to adjust to and can severely impact the dynamics of a relationship. At Clapham & Collinge we have specialist solicitors in both our Private Client department and Family department to assist on this topic.
Despite the new Divorce, Dissolution and Separation Act 2020 aiming to make divorce a more constructive, succinct and amicable process, issues may still arise where one party lacks the mental capacity to make decisions.
Under the Divorce, Dissolution and Separation Act 2020, the applicant(s) must prove that their marriage has broken down irretrievably by producing a statement.
It is important that both parties act independently in a divorce application to agree the terms of the settlement, whether this includes child arrangements and/or financial arrangements.
If, however, one party lacks the mental capacity to make decisions and cannot agree to a settlement there are alternative options.
Firstly, we would advise that a capacity assessment is undertaken. Here, the assessor will take into consideration the individual's ability to understand relevant information relating to the settlement and their ability to make an informed decision from this information.
Secondly, if the individual is deemed to lack mental capacity to make decisions regarding the divorce settlement, someone will need to be appointed to make decisions on their behalf.
Thirdly, this is when a litigation friend will need to be appointed. This could be a friend or close family member; their role will be to make decisions on the individual's behalf. Alternatively, an application can be made to the court to appoint a litigation friend, as last resort the Official Solicitor may agree to act as litigation friend.
Lastly, if the individual recovers their capacity during the divorce proceedings, an application can again be made for the litigation friend to bring their appointment to an end.
We understand that both topics covered in this article can be extremely difficult for both parties, but at Clapham & Collinge we are more than happy to help. Further, if you are worried about someone else, who you believe may lack capacity, or personally believe you may soon lose you own mental capacity to make decisions, please do not hesitate to contact our office.
Our dedicated team within the Family Department at Clapham & Collinge LLP are able to provide advice and assistance specific to your individual circumstances. To book an appointment, please contact our dedicated Client Relations Team on 01603 693510 or by using the 'Make an Enquiry' form on our website.
Face to face appointments are available at our Norwich, North Walsham or Sheringham offices.
