HM Insights

Can you divorce when one partner suffers from mental illness or incapacity?

Awareness of mental health issues continues to become increasingly prominent in all walks of life. Increased social awareness and acknowledgment of the importance of recognising mental health issues has led to a change in culture.

Problems with mental health can take different forms and have varying extents of severity. Symptoms of mental health problems can often present themselves as behavioural changes which result in a deterioration if untreated. On the other hand, some forms of mental health problems such as dementia and Alzheimer's disease are irreversible and lead to lifelong changes in personality and behaviour. The Alzheimer's Society has stated that there are over 850,000 people with dementia in the UK.

Sadly, changes in behaviour can impact upon personal relationships, whether intentional or not. In the context of marriage, this can lead to a breakdown of a relationship. When faced with separation from a spouse involving mental health problems, often assisting the individual experiencing health difficulties to obtain treatment may be enough to resolve matters. However, in some circumstances differences may be irreconcilable and bring the relationship to an end. Special considerations can apply for spouses seeking divorce against a background of mental health issues, particularly if those issues have an impact on capacity.

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How do I get a divorce in Scotland?

A divorce can be granted by a Sheriff Court or the Court of Session. The only basis a divorce can be pronounced is as a result of the marriage breaking down 'irretrievably'. This can be established by one of the following facts:

  1. One spouse committing adultery;
  2. If, since the date of the marriage, a spouse has at any time behaved (whether or not as a result of mental abnormality and whether such behaviour has been active or passive) in such a way that the pursuer cannot reasonably be expected to cohabit with the defender;
  3. If the couple have not lived together as husband and wife for a period in excess of one year and the other spouse consents; or
  4. If the couple have not lived together as husband and wife for a period in excess of two years (no consent is required from the other spouse).
  5. Before a divorce can be granted in Scotland, it is necessary for the financial matters and care arrangements for any children under the age of 16 years to either have been agreed or determined by a court.

Simplified Divorce or Ordinary Divorce procedure?

In Scotland there are two types of Divorce procedure. The Simplified Divorce procedure and the Ordinary procedure. The Simplified procedure is the more straightforward and cheaper method of divorce. It is however only available in situations of 3 and 4 above and where financial matters are agreed and there are no children under the age of 16. The Ordinary procedure is required in all divorces where there are children under 16. It is also necessary in situations where no agreement can be reached on dividing matrimonial property. The ordinary procedure is also required when an individual wishes to apply for divorce as established by adultery or unreasonable behaviour.

What is Incapacity?

The law dealing with adults who have lost capacity is contained with The Adults with Incapacity (Scotland) Act 2000. The legislation provides a framework for safeguarding and managing the welfare and financial affairs of adults who lack capacity due to mental illness, learning disability, dementia or other such conditions. Incapacity may be caused either by mental disorder or inability to communicate because of physical disability.

How is Incapacity determined?

Adults are presumed to have legal capacity. An 'adult' means a person who has reached the age of 16 years. Incapable means incapable of acting, making decisions, communicating decisions, understanding decisions or retaining memory of decisions. The presumption of an adult having legal capacity is rebuttable. Capacity or sanity is a question of law. It is decided if necessary by a Court, usually by way of medical or psychological assessment.

Can you divorce someone who has lost capacity?

Yes. In situations where the spouse who has lost capacity receives divorce papers, the Court would appoint a Curator ad Litem on behalf of the Defender. A Curator ad Litem is an independent solicitor. Their role is to protect the interests of the Defender who is suffering from some form of mental disorder. If consent is required from the Defender to a divorce, the Court will order intimation of the action to the Mental Welfare Commission for Scotland and request a report indicating whether in the Commission's opinion the Defender is capable of deciding whether or not to give consent to divorce.

Agreeing a division of matrimonial property with someone lacking capacity

In terms of resolving the financial aspects of a separation prior to a divorce being raised, if a person has lost legal capacity, they will not be able to enter a legally binding separation agreement. In some circumstances, a person may have a Power of Attorney in place which includes sufficient powers to appointed attorneys to also deal with any matters relating the incapacitated persons welfare and finances. If there is no Power of Attorney, a Guardianship Order will require to be applied for.

Can someone who has lost capacity by dementia apply for a divorce?

To raise an action of divorce, a Pursuer must have capacity, title and interest at the point of applying for a divorce. Adults are presumed to have legal capacity. If the applicant / Pursuer lacks capacity when a divorce is raised, they do not have capacity to seek a divorce and the action would be incompetent. Therefore if divorce is to be raised on behalf of someone without capacity, it is necessary for them to obtain appropriate legal powers before doing so. This would be by obtaining a Guardianship Order which includes specific powers to deal with a divorce.

What is Guardianship Order?

Such orders appoint an individual as Guardian and provide them with powers to deal with such matters as necessary relating to property, financial affairs or personal welfare of an adult as may be specifically outlined within the order.

An application for a Guardianship Order may be made by any person claiming an interest in the property, financial or personal affairs of an adult. The order will be likely be granted where the Court is satisfied that the adult is:

  • incapable of making decisions about the safeguarding and promoting their interests in property, financial affairs or personal welfare;
  • Likely to continue to be incapable of doing so;
  • And there are no other means sufficient to enable the adult's interests in property, financial affairs or personal welfare to be safeguarded or promoted.

As part of a Guardianship Order application, where the incapacitated person is involved in a separation or divorce, the Guardianship Order application can include a request for specific powers to be granted including the power to pursue or defend an action of declarator of nullity of marriage, or of divorce or separation in the name of the adult.

What if someone becomes incapacitated during divorce proceedings?

Where a party loses their capacity during divorce proceedings, no further steps can take place in their name. The case would usually be sisted (frozen) to allow a Guardianship Order to be applied for. Once a Guardianship Order has been granted and a Guardian has been appointed, the Guardian is then entitled to apply to join the court action if they wish to do so.

What does this mean in real terms?

  • Putting in place a Will and a Power of Attorney should be a must for sensible estate planning.
  • Behaviours can be a ground for justifying a divorce to be granted.
  • A divorce can go ahead in situations whereby capacity is lost.

Get in touch

At Harper Macleod we have solicitors who specialise both in terms of Family Law and in Private Client matters involving capacity issues. We can offer initial advice and help you through the process of working out what to do when dealing with your house as part of a separation. For a confidential chat, please get in touch.