Skip to main content

Contact us to arrange your
FREE initial consultation

Call me back Email us

Written on 2nd November 2023 by Sue O'Connell-Davidson

Where parties wish to institute divorce proceedings and one of the parties may lack mental capacity, there are initial considerations to be aware of, as set out below.


Before any divorce proceedings may be instituted, one of the first questions to resolve is that of capacity. If a party is considered to lack capacity, this means they lack the capacity to make a specific decision on a specific matter or take a specific action - this will always be specific to the particular circumstances of the case and the decisions involved.

In relation to divorce, the starting point is that all parties are deemed to have capacity unless the contrary can be established. As referenced in the two cases below:-

Mason v Mason (1972) …the starting point is that he or she "must be assumed to have capacity unless it is established that he lacks capacity".

Lister v Brutton & Co (2002) It is common ground that all adults must be presumed to be competent to manage their property and affairs until the contrary is proved, and that the burden of proof rests on those asserting incapacity.

Within the context of family proceedings relating to divorce, not only will it need to be determined whether capacity exists in relation to the divorce, it will also need to be determined whether capacity exists to understand and manage the minutiae of the party’s financial affairs linked to the divorce.

To determine capacity, expert evidence involving an assessment by a doctor or medical profession will need to be obtained so it can be established whether in their professional opinion the loss of capacity is permanent, temporary or relates to some decisions but not others.

A litigation friend

If it is determined that one of the parties (the protected party) lacks mental capacity, it is possible for them to divorce, although the protected party will need a litigation friend to act on their behalf in making decisions during the divorce process (Family Procedure Rules 15.2 - A protected party must have a litigation friend to conduct proceedings on that party’s behalf.)

It is imperative that a protected party has a litigation friend as under the Family Procedure Rules 15.3 (3) - Any step taken before a protected party has a litigation friend has no effect unless the court orders otherwise.

A litigation friend may often be a deputy who is already acting for the protected party. However, a litigation friend may be a family member or friend. The Family Procedure Rules 15.4 state:-

(3) … a person may act as a litigation friend if that person –

(a) can fairly and competently conduct proceedings on behalf of the protected party;

(b) has no interest adverse to that of the protected party; and

(c) … undertakes 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.

An individual who wishes to be appointed as a litigation friend (if they are not a deputy who is already acting) must file a certificate of suitability to act in a standard court format confirming that they satisfy the conditions referred to above.

The role of a litigation friend is of paramount importance as above all else their duty is to make decisions in the best interests of the protected party.

Divorce proceedings are understandably difficult for all parties involved although the complexities and concerns that exist when one of the parties lacks capacity and is deemed to be a protected party are exacerbated. In view of this, it is important for both parties involved to be aware of these initial considerations and take the appropriate steps to enable them to work towards achieving the optimum outcome for them both.

At Boyes Turner we have experience in all types of proceedings in the Court of Protection. For further information, please contact the Court of Protection team on 0800 124 4845 or email