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A recent family case has highlighted the potential issues that can arise through not adequately considering the question of capacity at the time agreements are drafted.



In the MAF v RAP case, the wife had a bipolar effective disorder. She and her husband reached an agreement in 2011 providing the husband with 80% of the assets following a marriage of nearly 30 years.

Shortly afterwards the wife was detained under the Mental Health Act 1983.

The Wife appealed the final order that resulted from her agreement, mainly due to her not having sufficient capacity at the time it was agreed.

The Appeal judge said that the wife had an arguable case. Rather than allowing the appeal to proceed however, he referred it back to the lower Court to consider whether the order should be set aside.

The distinction between setting aside and appealing is fairly slight, however had the matter proceeded to appeal, the judge would consider the extent to which it would be appropriate to replace the initial agreement with a different outcome.

Referring the matter back to the lower Court to consider setting it aside, introduces the possibility of the parties going back to the drawing board to try and agree a different outcome, but only if the wife is found to have not had capacity at the time the first agreement was reached.

Solicitors should always be mindful of their client’s capacity. If there is ever any doubt, the Family Procedure Rules 2010 places a duty on them to inform the court.

Andrew Barton is a partner in the Stephens Scown Exeter Family solicitors team and a Resolution Accredited Specialist in complicated financial matters arising from divorce. He regularly advises clients in relation to pre-nuptial agreements, as well as divorce and financial matters.

Stephens Scown has offices in Exeter, Truro and St Austell. Its top-rated family team advises clients on a wide range of family law issues including divorce and family finance. To contact Andrew, please call Exeter 01392 210700, email or visit