Later life divorce and mental capacity

Divorce rates for the over 65’s have tripled since 1990 and a question which sometimes arises is do both parties have the mental capacity to divorce? Therefore, if one party lacks mental capacity, do they need someone – a friend, relative or professional advocate who can make decisions for them during the divorce process?

You can already appoint someone to act to make decisions for a person lacking mental capacity through a Lasting Power of  Attorney, but in the absence of one there could be a court appointed deputy who can take on this role.

The person must consent to act and be able to fairly and competently conduct the proceedings on behalf of the protected party.  They must also have no interest adverse to the person without capacity and they must also agree to pay any costs which the protected person might be required to pay.

When considering a financial settlement where a person lacks capacity then there will be additional considerations such as the need for increased income and capital to help cover carers’ or residential care home fees.

The courts will look at what each individual has put into the marital pot and the length of the marriage as well as the needs of any dependants, but this typically means a 50/50 division of assets
and wealth.

If the person with capacity doesn’t want to end the marriage but simply wants to protect their assets then they could choose to apply for a judicial separation, which means a financial settlement can be achieved without the marriage ending in divorce.  This does however mean that a complete clean break or financial deal which involves pensions cannot be achieved as only a divorce can do that.

Clearly a divorce at any age is difficult and issues around mental capacity which could begin before or during the process for one of the parties is beyond everyone’s control.  Finding a solution which sensitively takes each parties needs into account is important.

If you would like to discuss any aspect of separation, divorce or financial agreements please get in touch with our team.

For further information contact Sunita Chauhan s.chauhan@gullands.com