Navigating divorce when capacity is impaired: insights for brain injury and dementia cases

This week (15-19 May 2023) is National Brain Injury Awareness and Dementia Awareness week. 
 

Our colleagues have previously written about the treatment of personal injury awards in financial settlements upon divorce (here). This article looks at the practicalities of family law court proceedings: how does someone participate in the legal process if they have a brain injury or other condition that means that they can’t understand the process or the decisions that need to be made? Here are some common questions. 

Is it possible to divorce someone if they have a brain injury or are suffering from dementia and have difficulty understanding what is happening?

 Yes it is.  However, if a spouse has difficulty understanding what is happening, then it will need to be clearly established whether or not that spouse understands the decisions that they are making in relation to the divorce. This means they may not have capacity to conduct the proceedings.  If there is any doubt then the court should be notified and the issue investigated as soon as possible.

 

What is capacity?

 To understand this we need to turn to the Mental Capacity Act 2005 (“MCA”). Perhaps one of the most important core principles of the MCA is that a person is presumed to have capacity unless it is proven otherwise.  So how is capacity to be understood?

The definition of capacity is set out at section 2(1) of the MCA:-

For the purposes of this Act, 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."

 Another important point to remember is that it is possible to have capacity in relation to some areas of life but not others.  A person can have capacity to manage their own finances and practical arrangements but not to deal with court proceedings, for example the husband in AF v SF [2019]  EWHC 1224 (Fam) [2020] 1 FLR 121.

 

Who can raise the issue of capacity?

 Often it will be the solicitor who suspects that their client lacks capacity.  But equally the client’s spouse might raise it, or concerned friends or family, or the court of its own accord. 

Once doubts have been raised, the next step would be to arrange a capacity assessment.

 

Who can assess whether or not my spouse has capacity?

 Technically, anyone can carry out a mental capacity assessment but it should be a professional with the proper training and credentials. In the case of a divorce or other family proceedings, this is often a medical professional such as a GP, a psychiatrist or psychologist. Alternatively, there are also now specialist capacity assessors who can help.

 

What happens if my spouse lacks capacity?

 In family law proceedings, a spouse who lacks capacity to conduct the proceedings is called a “protected party” (FPR 2010, rule 2.3).  FPR 2010 Part 15 deals with the representation of protected parties. A protected party must have a litigation friend (FPR 2010, rule 15.2) to act in their place.

If any of the protected party’s friends and family is willing and able to be their litigation friend, and the protected party agrees, then they can file a certificate of suitability at court and can then conduct the litigation on their behalf.

FPR 2010 Part 15 provides that someone can be a litigation friend if they:

• can fairly and competently conduct proceedings on behalf of the protected party
• have no interest adverse to that of the protected party
• undertake to pay any costs which the protected party may be ordered to pay in relation to the proceedings, subject to any right that person may have to be repaid from the assets of the protected party (this does not apply if in the case of the Official Solicitor)

If the protected party does not have any family or friends who are willing or suitable to be their litigation friend, the Official Solicitor can be asked to fulfil this role. 

The Official Solicitor's criteria for consenting to act as litigation friend are:

• in the case of an adult that the party or intended party is a protected party;
• there is security for the costs of legal representation of the protected party which the Official Solicitor considers satisfactory (this can be via legal aid if available or the protected party’s own funds if they have financial capacity); if they do not have financial capacity then this may necessitate an application to the Court of Protection to obtain authority to recover costs from those funds.  Alternatively, the other party in the proceedings might agree to give an undertaking to meet the costs in order to avoid the proceedings being delayed (pending an application to the Court of Protection).
• the case is a last resort case.  If there is another person willing and suitable to act as a litigation friend the Official Solicitor will not accept the appointment.

Once a litigation friend is in place, the proceedings can continue in the usual way.

 

What happens if I reach an agreement with my spouse but they later argue that they lacked capacity?

 According to Bailey v Warren [2006] EWCA (Civ 51), in order to have capacity to approve a settlement in court proceedings, a party needs to have insight into the settlement and be able to instruct solicitors to advise them on it and be able to understand and weigh up the advice. The test is time and issue/decision specific so the individual’s capacity and understanding at the time the decision is taken is the vital factor here.

If a party to a compromise lacks capacity, even if this lack of capacity was not known at the time, then the consent order will be invalid and set aside.   

This was considered by Mostyn J in MAP v RAP [2015] 2 FLR 67. The wife in that case had serious mental health difficulties but neither party's solicitor notified the court there was an issue about her capacity. She began acting in person and agreed a financial consent order that was unfavourable to her. Afterwards she wrote to the court explaining that she suffered from mental illness and believed she had signed the agreement under duress. The judge approved the consent order without being aware of the letter.

Mostyn J held that the wife had an arguable case that she did not have capacity to enter into the consent order.  In looking at the procedure to be followed, he declined to grant permission to appeal but instead directed that an application to set aside the order should be heard at first instance before the original judge. 

This demonstrates the importance of considering capacity at an early stage as a failure to do so could result in far reaching implications.

 

Further information
 

If you would like any further information or advice about the topic discussed in this blog, please contact Simon Hardy in the Court of Protection team or a member of the Family and Divorce team.