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There are particular issues which arise if you want to issue divorce proceedings but are concerned that your spouse might not have capacity.
A person lacks capacity if they are unable to make a decision in relation to the matter because of an impairment of, or a disturbance in, the functioning of the mind or brain. This would be the case if a person cannot;
- Understand the information relevant to the decision, or,
- Retain that information, or,
- Use or weigh the information as part of the decision making process, or,
- Communicate their decision.
If it is not clear whether a person lacks capacity, the court will have to resolve this issue before the proceedings can continue and will usually seek expert evidence from a medical professional.
Where a person lacks capacity, they are called a “protected party” and a litigation friend must be appointed on their behalf. This might be a deputy authorised by the Court of Protection, the Official Solicitor or a Suitable Person. A Suitable Person might be a friend or relative of your spouse who can fairly and competently conduct proceedings on their behalf, has no adverse interests and promises to pay any costs awarded.