Marriage, mental capacity and the law

There are currently more than 850,000 people suffering from dementia in the UK, a figure that looks set to rise. In light of these astonishing statistics and news of a recent case in which a woman is looking to divorce her estranged, aristocratic husband who lacks the mental capacity to instruct lawyers, Spear’s Top 50 family lawyer Zoe Bloom explores the difficult dilemma of dementia divorce.

Life can change suddenly. An accident or sudden onset illness can alter the course of a family’s day-to-day existence and make nothing as it was before. Equally, ill health can creep up on you. A misplaced word, forgetfulness or uncharacteristic and erratic behaviour might signal that all is not well with loved ones. Sadly, early-onset Alzheimer’s, when the disease occurs in someone under 65, is often characterised by bad temper and irritability, making it incredibly difficult for the family. With an increase of over one third, in over-60s divorces we are seeing ill health becoming a feature in more and more divorces.

Those in a caring role may well crave the normality of their previous life and a stable relationship. When things alter slowly they question their own position: have they changed or are they the ones at fault? They see their spouse’s vulnerability and feel desperate and torn between their love for the person who is unwell and their own loneliness. The fear of being judged by those around them can play an important part in their decisions. Discussions with young adult children are not always considered appropriate in circumstances when they are being asked to take important decisions and responsibilities.

I often hear descriptions of changes to relationships and people, and to the way that dynamic alters over the course of a lifetime together. Sometimes those changes result in an impasse, and the end of a relationship. Illness adds new layers of uncertainty and guilt to situations which are already testing for everyone involved. I can only listen and advise as to the legal options. If they have uncertainties they want to discuss, then I can introduce fabulous professionals who the client can talk to and reach their decision. Many do not return to see me, preferring to stay in the relationship.

When they do decide to leave, often because the person they once loved is unrecognisable, it is usually a difficult journey. Too often the separation becomes litigious, fuelled by uncertainty and distrust. It adds levels of professional difficulty too. In many cases it is up to the solicitors for the potentially unwell party to state whether or not they believe their client has capacity to instruct them. To make accusations about capacity, particularly in cases where the medical evidence is uncertain or the onset is in its very early stages, is unwise.

We simply have to tread especially carefully and with upmost respect and go through the steps until either the court or medics have made a decision about how to proceed. It is no easier when you are instructed by the person who potentially lacks capacity. Things become slightly easier once the loss of capacity is established and there are procedures in place to assist the parties. That certainty also helps the parties who may have ongoing feelings of guilt and doubt during the early stages of divorce.

The best time to have an open and frank discussion about what might happen in the event you lose capacity is before it happens. If it is a discussion which is too uncomfortable to have with your partner, then you might choose to visit a solicitor specialising in these issues, usually a private client solicitor, to discuss what you can do to ensure that there is protection in place.

If you find yourself in a position where you are considering divorce and you think your partner might have lost or is losing their ability to make rational decisions, then that is the time to speak to a divorce solicitor to consider your options.

Always choose someone who is sensitive to the issues and will act respectfully. Most importantly, they should listen to you and your family and help you make decisions about the future to exit in the most dignified way possible.