Divorce is a huge step for anyone, but when a partner is suffering from an illness such as dementia, the guilt, concerns and strain can be twofold. Family law partner Sarah Walls explains some of the things that you need to consider. 

It can be a very difficult decision to make to bring a marriage to an end, even more so when one spouse is acting in a way that is out of character due to an illness or health condition which affects their behaviour. For couples facing this situation, the options can seem impossible to choose, especially as it isn’t the partner’s fault that they are acting in an unusual way. If your spouse has lost the capacity to make decisions as a result of dementia or otherwise, and you feel that your marriage has come to an end, it is possible to get divorced or legally separated.

If you are not quite ready to make a decision but are finding your relationship difficult there are charities like Dementia UK and Alzheimers Society who provide support to anyone affected by dementia.

Capacity to make decisions

How you approach divorcing or separating will rest on your partner’s capacity to make decisions. Determining whether or not a person has capacity to make decisions varies, depending on what a person is seeking to do. For example, the capacity to get married or get divorced will be lower than the capacity needed to give instructions about a settlement of complex financial proceedings. If there is concern about whether someone has capacity, it is very important to take advice before any steps are taken. If it subsequently transpires that the person who made decisions lacks capacity, those steps can be set aside. If it is decided that someone does lack capacity to divorce or reach a financial settlement, an application can be made to the Court for a ‘litigation friend’ to be appointed for that person.

A litigation friend

A litigation friend is a suitable person who is appointed by the Court to step into the shoes of the spouse without capacity and make decisions on their behalf. For example, the litigation friend could be a family member or friend, but it is important that they do not have any interests which conflict with the person they are assisting. If there is no one suitable to assist the spouse, the Official Solicitor can be appointed as a litigation friend, but this will usually result in greater costs being incurred and more delays than if a suitable alternative such as a friend or family member is able to perform the role.

Judicial separation

If your relationship is under the stress of living with dementia, you could consider a judicial separation. This is where the court can make orders about the division of money and property, but does not actually end the marriage. A judicial separation is not usually a sensible course for most people as it does not end the marriage and the Court do not have the full range of financial remedies which would be available in a divorce, but in certain circumstances it could be considered. It gives the spouse the opportunity to protect their finances from the partner while remaining married.

It is important to take advice at an early stage if any of the options above are being contemplated. Sarah Walls, Partner in the family team at Stephens Scown, has experience in acting in divorces and financial settlements on divorce where it is necessary for a litigation friend to be appointed.