EWJ Dec 2023 - Journal - Page 43
Divorce and Capacity
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.
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.
Capacity
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.
To determine capacity, expert evidence involving an
assessment by a doctor or medical professional 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.)
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.
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
Within the context of family proceedings relating to
divorce, not only will it need to be determined
Dr Linda Monaci
Consultant Clinical Neuropsychologist
Medico-legal assessments for suspected or known brain injury and/or
brain dysfunction in Personal Injury and Medical Negligence claims
• Acquired brain injury
• Post-concussion syndrome
• Cognitive dysfunction
• Anoxia
• Stroke
• Dementia
• Epilepsy
• Neuropsychiatric conditions
• Mental capacity assessments
• Alcohol and drug abuse
Medico-legal services:
Instructions from Claimants, Defendants and as a Single Joint Expert. Assessments can also be carried out in Italian.
Dr Monaci has a good knowledge of Swedish and Spanish and has experience of working through interpreters.
Clinical services:
neurorehabilitation services.
Dr Monaci has completed the Cardiff University Bond Solon Expert Witness Certificates.
Main consulting rooms (nationwide locations):
Consultations for medico-legal services are available in London, Guildford, Leatherhead, Southampton and Portsmouth.
Assessments in care homes and in individuals' home may also be possible when based on clinical needs.
Clinical services are available in Surrey. Available for travel throughout the UK and abroad.
Correspondence address: linda@monaciconsultancy.com
Telephone: 07821 123618
www.monaciconsultancy.com
EXPERT WITNESS JOURNAL
41
DECEMBER 2023