Divorce and stress - when does someone lose the capacity to litigate? - Boodle Hatfield

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27 Feb 2023

Divorce and stress – when does someone lose the capacity to litigate?

Written by

Pippa Cook View profile
4 min read

It is well known that divorce can be one of the most stressful periods of someone's life, without even considering those which involve court proceedings. It is not uncommon where families separate for there to be concurrent (a) divorce proceedings (b) financial remedy proceedings and (c) children proceedings. The concurrent nature of such proceedings would be enough for many to feel that they simply cannot cope with the pressure of litigation on all fronts, but when would the Court step in to acknowledge that the party can no longer be considered to have capacity to litigate? The Court takes a robust approach to this.

What is capacity to litigate?

Firstly, it is perhaps important to ascertain what capacity means when it comes to family court proceedings. Capacity is defined per the Mental Capacity Act 2005 as "A person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or disturbance in the functioning of, the mind or brain."

The above makes it clear that the "material time" is important, which is something to bear in mind if someone might have fluctuating capacity i.e. good days and bad days or good months and bad months. Further, it is clear that someone can have capacity to make some decisions, such as to decide what to have for dinner, and not others, such as those relevant in legal proceedings.

There is also guidance set out in the procedure rules which address how capacity in family court proceedings ought to be addressed. For example, there is a legal presumption that someone has capacity unless it is proven that they do not. If someone feels they are unable to litigate therefore, it is for them to show this to the Court.

A high bar?

The case law in this area has been clear that it is a high bar in the approach taken by the Court to stress-related issues. For example, in Forresters Ketley v Brent [2012] EWCA Civ 324, the Judge concluded that ‘An adjournment is not simply there for the asking […] something more than stress occasioned by the litigation will be needed to support an application for an adjournment. In cases where the applicant complains of stress-related illness, an adjournment is unlikely to serve any useful purpose because the stress will simply recur on an adjourned hearing’ [25].

It is therefore important that where capacity may be in question, a formal approach is adopted. For example, Judges are likely to consider that expert evidence (for example, from a psychologist) would be required to help with determining whether someone has capacity to litigate, albeit that a Judge will not be bound to accept such evidence. That evidence should cover basic elements such as the medical condition in question and how that condition prevents someone being involved in the court proceedings.

What happens if someone is considered to lack capacity in proceedings? 

There are various options available to the Court to help a party who is deemed to lack capacity.

One route would be the appointment of a litigation friend who would be able to help someone through the proceedings. There are various criteria that a litigation friend should meet.

Alternatively, the Court may involve the Official Solicitor as a litigation friend. The Official Solicitor is a formal representative who is appointed by the Court and is often an experienced solicitor. Involvement of the Official Solicitor is a last resort and should not be done where someone else who is suitable and willing could act as someone's litigation friend.

The key takeaway is that the proceedings do continue in some shape or form - they do not pause to wait until someone might regain capacity at some point in the future.


The Courts, understandably, do not wish for proceedings simply to be put on hold where capacity is an issue and it is therefore important to be mindful of capacity (when acting for either party) at all stages, especially when these might be lengthy or particularly arduous for parties. Legal proceedings are, by their nature, stressful and, at times, unpleasant. The Courts have, however, been clear that feeling such stress does not necessarily equate to lacking capacity to litigate. From a practical perspective this makes sense - our Courts would perhaps be filled with litigation friends / Official Solicitor involvement if it did. That does not, however, mean it is not an unfortunate element of these types of proceedings and those going through them may wish to seek help from friends, families or professionals to help them cope and to manage the stress that is often an inevitable consequence of the process.

Written by

Pippa Cook View profile