The Court of Protection and Divorce
Sadly, some individuals that sustain a brain injury which results in them lacking the capacity to manage their financial affairs also find that their relationship breaks down. It is important that both parties to the marriage take tailored legal advice early on so that the separation is handled properly, and with minimal stress and expense.
Where a person lacks capacity to conduct the divorce proceedings (and is a “protected person”), a Litigation Friend should be appointed to “step into the shoes” of that protected person.
Even where an individual does not have capacity to manage their finances, it does not automatically mean that that individual does not have capacity to participate in the divorce proceedings, and this must be assessed early on.
In some instances, the Litigation Friend will be able to make various admissions on the protected person’s behalf (such as where adultery or unreasonable behaviour is alleged), if they are able to satisfy themselves that the allegations are true.
However, a Litigation Friend is prohibited from giving the required consent for a divorce to proceed on the basis of two years separation where both parties consent to a divorce (in that instance it may be that the protected person does have capacity to give the required consent, but again, that will need to be assessed).
It is therefore sensible for the other spouse to discuss the divorce proceedings with the (intended) Litigation Friend before divorce proceedings are commenced.
A Litigation Friend will also be able to make decisions in relation to the financial settlement arising upon divorce, although care must be taken to obtain the consent of the Court of Protection Deputy (who may need the approval of the Court of Protection) before agreeing the terms of any financial settlement.
Karen Pritchard in our Family team has previously worked alongside a professional Deputy within a Court of Protection team, and therefore has a wealth of experience in handling family matters for individuals whose affairs are managed by a Court of Protection appointed Deputy.
Please do not hesitate to contact Karen on 01279 712552 if you would like further advice.