Case guidance: capacity to divorce

A full summary of the case, kindly drafted by Victoria Rylatt of Anthony Gold Solicitors LLP and Jake Rylatt of Serjeants' Inn, is available here. 

A recent judgement addressed capacity issues in divorce proceedings and considered the Court of Protection’s powers in this area. 

Whatever the circumstances, ending a marriage is a significant decision with far-reaching consequences. There is little guidance on how to approach a case if one of the parties to a divorce is assessed to lack mental capacity.

As such, the recent judgement in D v S [2023] WEFC 23 is welcome. Mr Justice Hayden addressed whether a divorce can be pursued in an individual’s best interests if they lack capacity to make that decision. 

Mr Justice Hayden declined to provide wider guidance given that capacity issues are fact- and decision-specific and should be decided on the client’s circumstances. However, the case is useful in outlining the Court’s thoughts around these issues. 

Background to the case

D and his wife S married in 1998 and had two children. Along with D’s brothers they were shareholders in the family business. In 2006, there were reportedly considerable strains in both the marriage and the business, and D and S were living separately. Unfortunately, D suffered a severe brain injury after taking an overdose.

Divorce proceedings were initiated in 2007 but were unresolved for several years. It wasn’t until 2022 that an application regarding D’s capacity was made to the Court of Protection. The case was further complicated by claims made by S regarding the misuse and misappropriation of business funds by D’s brothers. S also claimed that the marriage needed to stay intact to secure her and her children’s financial wellbeing. 

The judgement in brief

Mr Justice Hayden's judgment considered two key factors:  

1. D’s mental capacity 

2. Whether a divorce would be in D’s best interests

1. Did D have the necessary mental capacity to make to decide to divorce? 

D’s brain injury was severe with “extremely limited” communication in that he couldn’t answer simple and direct questions or follow simple requests. Expert evidence concluded D didn’t have the ability to weigh, retain, or balance information across a range of matters. 

Given this evidence, Mr Justice Hayden ruled that “all but the most rudimentary decisions are now beyond D” and that he lacks the necessary “capacity to consent to the decree”. 

2. Was a divorce in D’s best Interests?

It fell to the courts to decide whether a divorce was in D’s best interests.  Mr Justice Hayden heard extensive evidence regarding D’s views of his marriage prior to and following the overdose which suggested that, from D’s perspective, the marriage was irretrievably broken.  D was consistent in his views on wanting a divorce. 

The judge also heard evidence from one of D’s children. And, while he acknowledged S’s concerns about financial misconduct in the business, he concluded that “it may even be that it is to S’s financial advantage for the divorce proceedings to go ahead”. 

Mr Justice Hayden concluded that granting a decree nisi – a declaration that a marriage has broken down granted in advance of obtaining a decree absolute – was in D’s best interests.

Key takeaways for deputies

This case provides a useful reference for future situations of a similar nature. However, it’s important to remember that every case handled by the Court of Protection will have its own set of unique circumstances. Indeed, it was for this reason that the judge was reluctant to provide further specific guidance in addition to his ruling.