Litigation friends

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.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.