Get a divorce

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If your husband or wife lacks mental capacity

You can apply for a divorce if your husband or wife ‘lacks mental capacity’ and cannot agree to a divorce or take part in the divorce case.

Your husband or wife will need someone to make decisions for them during the divorce. The person who acts on their behalf is called a ‘litigation friend’. It can be a family member, close friend or someone else who can represent them.

Your husband or wife does not have a litigation friend

If there’s no one suitable and willing to be their litigation friend, you can apply to the court to appoint a litigation friend.

The Official Solicitor may agree to act as your husband or wife’s litigation friend when there’s no one else to do this (‘litigation friend of last resort’).

How to apply

  1. Check there’s nobody else suitable or willing to act as your husband or wife’s litigation friend.

  2. Check that there’s money available for any costs the Official Solicitor has to pay. Your husband or wife may be able to get legal aid.

  3. Give the details of your husband or wife’s doctor or other medical professional to the court so it can ask for a certificate of capacity.

If the Official Solicitor agrees to act as litigation friend for your husband or wife, you’ll be able to file for divorce.

Contact the Official Solicitor’s staff

Email or call the private family law team if you have an enquiry about divorcing someone who lacks mental capacity. They cannot answer general questions about divorce.

Official Solicitor - private family law team
ospt.dsm@offsol.gsi.gov.uk
Telephone: 020 3681 2754
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Part of Get a divorce: step by step

  1. Step 1 Get support and advice

    You can get support or counselling to help you through the divorce process.

    1. Get support and advice from Relate
    2. Find a counsellor on Counselling Directory

  2. Step 2 Check if you can get divorced

    1. Check if you can get a divorce
    2. Get legal advice if you want help with the divorce process

  3. Step 3 Make arrangements for children, money and property

    1. Make arrangements for your children
    2. Divide your money and property
    3. Check if your divorce will affect whether you can live in your current home

  4. Step 4 Apply for a divorce

    1. Apply for a divorce online or by post £593
    2. Get help with court fees
    3. Get legal advice
    4. You are currently viewing: Get help if your husband or wife cannot make decisions for themselves

  5. Step 5 Apply for a ‘conditional order’ or ‘decree nisi’

    1. Apply for a ‘conditional order’ or 'decree nisi'

  6. Step 6 Finalise your divorce

    1. Apply for a ‘final order’ or 'decree absolute'

  7. Step 7 Report that your circumstances have changed

    You also have to tell other government organisations that you're getting divorced if: