How can a litigation friend help me during divorce? Divorce proceedings can be challenging for separating parties at the best of times, but what happens when questions arise as to one party's capacity to conduct divorce proceedings?
The test of capacity
There is an automatic presumption that someone has capacity unless it is established that they lack capacity. The test for capacity is dictated by section 2 of the Mental Capacity Act 2005 and allows for a fluid approach to assessing capacity. In essence, a person’s capacity may fluctuate over time and whilst they may be deemed to not have capacity to make some decisions, they may have capacity to make others. For example, someone may have capacity to get married but lack capacity to conduct court proceedings. Accordingly, if there are any doubts as to someone’s capacity, a proper medical assessment should always be sought.
The question for family lawyers and their clients when one party lacks capacity will be, “How is this going to impact my case?” In short, the fact that someone lacks litigation capacity should never limit either party’s access to legal remedies. The proceedings can still go ahead and the parties are no less entitled to access the judicial system or to take advantage of the various financial remedies that the Family Court can provide to an applicant who satisfies the relevant criteria.
Appointing a litigation friend
If a person lacks capacity to conduct divorce proceedings, a third party known as a ‘litigation friend’ can be appointed to represent them. The litigation friend can either apply to appoint themselves, or someone involved in the proceedings can apply to the Court for a litigation friend to be appointed. The litigation friend’s duties are to act in the best interests of the person lacking capacity, do all that they can to ensure they fully understand what is happening in the proceedings, ascertain their wishes and feelings, obtain advice from and give instructions to their solicitor/counsel, and to pay any costs ordered by the Court. The litigation friend’s personal liability to pay any costs ordered by the Court will depend on who is appointed and the circumstances of the case.
There are various categories of people who can act as a litigation friend, ranging from friends and family members to professionals. Regardless of whether the litigation friend is someone known to the party lacking capacity or not, their role will be the same. The appointment of the litigation friend ensures that the person lacking capacity is not at a disadvantage during the proceedings so that a fair outcome can be reached, but also ensures that the other spouse is not prevented from seeking recourse from the court.
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