If your separated spouse had broken their leg, you would assume that other than having a mobility issue (and pain) they would carry on as normal and not be entitled to opt out of decisions about ending the marriage.
That seems a no-brainer. Common sense provides the right answer.
The process of obtaining the termination of marriage – i.e. divorce – requires the service of a Notice/application for a divorce.
Whether a person can be validly served with an application may depend on their mental capacity.
Why should temporary or even a long-term health problem made a difference to the process of splitting up?
As a matter of law, a person who is aware and well enough to deal with their own affairs, rather than for example being in a coma, really had no good reason to refuse to engage in discussions about the future.
What if I cannot leave the house? How could I get advice?
Years ago and sometimes more recently before the pandemic, when businesses were forced to adapt to the need for social-distancing (admittedly with varying degrees of success), getting legal advice and setting up a formal retainer to engage an advisor usually required an in-person visit to the lawyers’ offices. It presented a problem for people living a long way from their choice of advisor and particularly if abroad in a different time-zone, but ways were found to deal with such obligations as client identification: being sure that the lawyer was acting for the person that they said they were.
Why is identification necessary to get legal advice?
Apart from professionals not wanting to get caught up in fraud situations, where they might find themselves accused of being involved, which apart from the risk of punishment would be bad for business/reputation amongst the non-criminal community, it has been mandatory for Anti-Money Laundering and Data Protection reasons for some time.
In order for career criminals and shady characters such as terrorists to move money around the world and invest it, they need to make the money look legitimate to pass it through banks and to carry out high-value transactions, which in the case of purchasing property requires a lawyer.
To cut down on lawyers being used unwittingly in such situations – or simply being careless as to the legitimacy of transactions, the international community decided to concentrate on making professionals positively identify their clients with proof that is difficult to falsify.
Identification slows down appointing a solicitor for low-risk work such as family cases, but it protects the public against being impersonated and reduces the ability of lawyers being unwittingly involved and losing their livelihoods and no longer being available to help people who need advice.
How do I prove who I am to get advice?
With the communications technology that we have today, even being house-bound would not prevent somebody from getting legal advice from a qualified legal specialist.
Many professionals ask for copies of passports/photo driving licenses to be sent in and then have a video call in which they can compare the likeness of the person with their ID, but there are agencies who can validate and check what information is available so as to provide an identity report which either says that they can confirm it is the person, set out any doubts or ring alarm bells about the person not being genuine.
There have been cases where fraudsters have sold other people’s property through identify fraud and these ID confirmations reduce that risk as well as addressing general money-laundering concerns.
I have proved who I am, but can I formally deal with separation if my spouse is mentally unwell?
Suffering from mental illness is not a simple well/ill binary state: like general health, mental health is on a spectrum and like with physical problems, not only are there degrees of difficulty which are symptoms, but there are issues as to whether those difficulties are chronic or temporary.
This is an area for the medical profession and therapeutic specialists, not one where lawyers are the experts but as a general comment, somebody who has reactive depression due to personal circumstances will have had it triggered by something and may not suffer from depression for more than a while, depending on their own personality, their support network and recover from that state of unwellness. They may recover their mental health as can other forms of mental illness – they are ‘illnesses’ not ‘conditions’.
If a person has a mental health issue/illness, then depending on the severity of it, they might be perfectly well able to manage their own affairs and their illness not have sufficient impact on their mind as to take away ‘capacity’.
What is ‘mental capacity’?
“Mental capacity is about being able to make your own decisions.
It is decision and time specific. We all make decisions every day, and most of us are able to make these ourselves. Sometimes, we may lack capacity to make a big decision.”
That is a quote from the General Medical Council on their informative website which Is based on the legislation of the Mental Capacity Act 2005 and the Mental Health Act 1983.
A person has capacity if they can do all the following:
- understand information relevant to the decision in question
- retain that information
- use the information to make their decision
- communicate a decision.
So – capacity is the ability to make decisions and obviously arrangements in separation and divorce can include both small decisions and large ones which can affect long-term rights.
Who can help if somebody lacks capacity? Where can I look to find official bodies who might deal with things?
There are two main official bodies to get involved where mental capacity is a problem: one is the Office of the Public Guardian
https://www.gov.uk/government/organisations/office-of-the-public-guardian/about-our-services
and the other is the Court of Protection.
The gov.uk website is a centralised source of information which comes from the Government and represents their official line on topics, including interacting with the courts and other government-appointed services.
The following link takes you to a page on ‘Making Decisions for Someone’ and also deals with mental capacity issues as part of that.
https://www.gov.uk/make-decisions-for-someone
Is there something people can do to help if they lose mental capacity?
Yes – years ago, the law created the option of an Enduring Power of Attorney. It was called ‘enduring’ to distinguish it from Power of Attorney that only applied if the person granting it retained full mental capacity.
What is a Power of Attorney?
A Power of Attorney is a document signed by somebody who wants to give somebody else the legal right to do things for them and act on their behalf officially – they can be used so that somebody can sign legal paperwork such as in a house sale or purchase and the normal Power is simply extending the capacity of the donor to the empowered person to run in parallel with their own rights.
That is why a Power of Attorney does not apply to people who have lost mental capacity: a person with capacity cannot use their judgment to replace that of the person who no longer has the mental capacity to deal with their own affairs.
Powers must be used for the benefit of the person who granted them and not for the benefit of the Attorney – they are under a duty to make decisions for the other person, not for personal gain.
There are many aspects to being an Attorney and it should be something discussed with a lawyer whilst the prospective donor has capacity to make their own decisions.
Does an Enduring Power allow decisions for people who no longer have mental capacity?
Indeed an enduring Power did just that – it continued after the donor was no longer able to deal with their own affairs, but enduring Powers were not allowed to be created after 1st October 2007, when it was replaced by the Lasting Power of Attorney.
What is a Lasting Power of Attorney?
A LPA was the replacement for Enduring Powers and has three options:
- Financial decision-making
- Health and wellbeing
- Both Financial and Health decisions
The technicalities of an LPA are beyond the scope of this article, but it is worth knowing that an LPA can appoint more than one person and can say what decisions need just one Attorney to make a decision and what decisions require both Attorneys to agree.
Does this mean that there is a lot of difficulty in separating from a person with mental illness?
There are always issues to be resolved when separating an divorcing and mental illness can affect the capacity of a person to make those decisions, but only prevents decisions which are too great for their level of competence at that time.
Can I get a Court Order sorting out finances on divorce if my spouse is mentally unwell?
There are two routes to getting a Court order
- By agreement – called ‘by consent’ and
- After a judge makes a decision as to final order
The process for each is different and so the impact of mental health depends on which is sought.
How does mental health affect getting a Consent Order?
For a judge to make an agreement into a court order, they need to consider the statutory factors set out in the Matrimonial Causes Act 1973 (as amended) which says that the judge must consider when deciding what is ‘fair and reasonable’ in all the circumstances of the case.
In order that health issues are not overlooked in that exercise, specifically the court must consider
(e) any physical or mental disability of either of the parties to the marriage
which whilst expressed in terms of ‘disability’ is widened by the ‘all the circumstances of the case’ which obviously includes health issues which are not permanent, as ‘disability’ requires them to be.
So the courts are directed to focus on the financial impact of health issues, particularly disability, which includes mental disability. Illness is a time-based issue which may end and mental health recovered, whereas ‘disability’ is permanent. The court may not need to decide which problem a person has, but is highly likely to give permission for expert medical evidence to be placed before the court to explain its impact on the person concerned.
What if my spouse agrees to have a Consent Order?
The criteria for a court to approve an agreement and make it into an Order can be broadly summarises as follows:
(a) the agreement must be contractually valid and able to withstand challenge on the basis of undue influence or misrepresentation, for example – i.e. that the deal is within the power of the court and that the process that devised that deal was fair and that agreement was freely given
(b) the judge must be satisfied that both parties properly understand the consequences and how their legal rights would be permanently changed – for example by a ‘clean break’
(c) both parties to the agreement must have received, at the time of the making of the agreement, disclosure of material information about the other party’s financial situation – so that full and frank disclosure has taken place and both parties were aware of the full financial picture
(d) the deal is within the range of ‘fair’ settlements – so the further from a 50/50 the outcome is, the more explanation for departing from equality will be needed
(e) the deal considers the needs of any children
All of those criteria taken together require that there is informed consent and that both people know what they are doing. If both people have lawyers acting for them, the concerns of the judge will be lessened, as it will have been the responsibility of the lawyer to explain the details of the deal and to check that all relevant information has been sought.
The judge still retains discretion, even if the parties do have lawyers and in the case of somebody with mental health issues, will want to be sure that they not only have capacity, but that they are not unduly pressurised into a deal. It would not be uncommon for a judge to ask questions about those issues if the supporting paperwork drew attention to the health of either party.
So – providing the spouse can show that they had the capacity for that decision: that it was not too big a decision for their state of mind at that time, a deal can still be done.
If a spouse lacks mental capacity, can anybody help them?
In the event that a spouse without a Lasting Power of Attorney lacks capacity to enter into a consent order or deal with financial settlement matters generally, that does not close off all options. This difficulty can be overcome by the appointment of a ‘litigation friend’ for the mentally-ill spouse. It takes time for somebody to be recognised as a ‘friend’ for that purpose, but matters can still be resolved.
The issues raised by disability or mental illness are complex and advice should be taken from a qualified solicitor as well as considering what health professionals advise.
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