Can I divorce my partner if they have dementia?
Yes, you can divorce your spouse if they have dementia. Someone with dementia may be deemed not to have sufficient mental capacity. This means that their decision-making capability is impacted. If someone lacks capacity, it does not stop the other person from getting a divorce.
Someone lacking in mental capacity will often find it hard to understand information, retain the information and weigh up the options to make a decision. As such, if someone does not have sufficient mental capacity, the process of getting a divorce is slightly different because they cannot consent to divorce proceedings themselves.
If your spouse has dementia, they will need to have someone called a “litigation friend” to help them with the divorce.
A litigation friend assumes decision-making responsibilities during divorce proceedings on behalf of someone who cannot make these decisions themselves. Any family member or friend can serve as a litigation friend, as long as their interests align with the divorcing person's and they can make impartial and sound decisions that prioritise the individual's welfare. You can apply to be a litigation friend by completing a "certificate of suitability."
Sometimes, the individual’s deputy, the person who makes decisions on their behalf appointed by the Court of Protection can take on the role of litigation friend too. However, they will need confirmation that the court order granting deputyship also permits them to act as a litigation friend.
In some cases where finding a suitable litigation friend is not feasible, the court may appoint an Official Solicitor as a last resort. To do this, you must double-check check there is no one suitable to act as a litigation friend and ensure that there are enough funds available for the Official Solicitor to pay in the divorce. You’ll also need to provide details of your spouse’s medical practitioner as the court will ask for a certificate of capacity.
The role of the litigation friend involves keeping the affected person informed about the case's progress and attempting to ascertain their preferences regarding specific matters in the divorce process. They also need to maintain communication with the person's solicitor to stay updated on developments and provide instructions based on unfolding events. Their responsibilities involve attending court hearings, covering court fees, and signing legal documents.
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