Divorce, Dementia and Mental Capacity: What Families Need to Know

World Alzheimer’s Day is 21st September 2026. It is an opportunity to reflect not only on the impact of dementia on the individual diagnosed and their families, but also on the difficult legal questions it can create for them. Alzheimer’s disease is the most common form of dementia.

In family law, dementia may arise in the context of separation, divorce, financial proceedings, child arrangements or long-standing marital difficulties. Sometimes a diagnosis comes before any legal process has started. Sometimes it emerges during proceedings. Sometimes one spouse has been managing the other’s care, finances and practical affairs for years before the relationship finally reaches breaking point.

Clients and families often ask whether any court proceedings can be started, or indeed if they have to stop if one spouse is diagnosed with dementia or otherwise lacks capacity.

The legal process may continue, but it must be managed differently and with proper safeguards.

These are some of the most sensitive cases to conduct. They require not only legal analysis, but real care in how the person with dementia is treated, how the other spouse is supported, and the impact on wider family members.

Capacity is issue-specific

Mental capacity is not an all-or-nothing concept.

A person may have capacity to make some decisions but not others. They may understand day-to-day choices but be unable to engage with complex legal or financial decisions. Their capacity may fluctuate. They may have better and worse days.

In family proceedings, the relevant question is whether the person has capacity to make the decisions required within that case. That may involve understanding the nature of divorce, the financial issues, the advice being given, and the consequences of decisions. They may have capacity for some decisions but not others. They might have capacity to decide they want a divorce, but not capacity to conduct the litigation.

Where there is doubt, medical evidence may be needed.

In my experience, families sometimes assume that because a person can have a conversation, they must be able to make all legal decisions. That is not always right. Equally, a diagnosis of dementia does not automatically mean that the person lacks capacity for every decision.

This is not simply a procedural point. It goes to the fairness and integrity of the whole case.

The role of a litigation friend

If a person lacks capacity to conduct proceedings, they will need a litigation friend.

A litigation friend conducts the proceedings on behalf of the person who lacks capacity. Their role is to make decisions in that person’s best interests within the litigation. This may be a family member, a friend, a professional deputy or, in some cases, the Official Solicitor.

The involvement of a litigation friend can feel strange or upsetting for families. It may formalise something everyone has been quietly managing for some time. It can be a realisation that the person can no longer deal with complex decisions alone. Historically, the separating spouse may have dealt with the other’s financial arrangements, but in the context of separation someone else will need to fulfill that role, because a divorcing couple will have competing interests.

I have seen families struggle with this step emotionally. It can feel like a loss of independence for the person concerned and painful confirmation for those around them, but it is also an important safeguard. It ensures that the vulnerable person is represented and that their position is properly advanced.

Financial remedy proceedings where dementia is involved

Financial remedy proceedings can be particularly complex where one spouse has dementia.

The court will still need to consider the parties’ financial resources, needs, standard of living, ages, health, contributions and all the circumstances of the case. Where dementia is an issue, future care needs, housing, income, deputyship arrangements and the cost of long-term support will be central.

These cases require careful analysis. A settlement that might appear fair on paper may not be workable if it fails to provide for what may be very significant care costs into the future. Equally, the needs of the other spouse cannot simply be ignored.

I often see tension between what family members feel is morally right and what the court must consider legally. Adult children may want to protect an inheritance. A spouse may feel they have already spent years caring for the other person.

All of those factors need to be handled carefully.

There may also be questions about whether assets are held jointly, whether attorneys or deputies have been involved, whether any transactions should be reviewed, and whether estate planning documents remain appropriate.

This is where family law and private client expertise often need to work together.

The emotional reality

These cases are rarely just legal disputes.

A spouse may be grieving the person their partner once was, while also trying to make decisions about separation. They may be emotionally drained from years of caring for a spouse, whose personality has changed dramatically that they feel they cannot go on any further. Adult children may have strong views about what should happen. There may be concern about inheritance, care fees, the family home, or perceived betrayal.

In my experience, people can feel guilty even asking for advice. They may worry that pursuing divorce or financial claims looks cruel when the other person is unwell. Others feel that the illness has been used to silence their own needs.

Both reactions are human.

It is not unusual for family members to feel conflicted. They may want to protect the person with dementia but disagree about what protection means. They may see the divorce through the lens of past family history rather than present legal need.

Protecting dignity and involvement

Where someone has dementia, it is still important to involve them as far as possible.

Lack of capacity to conduct proceedings does not mean the person should be invisible. They may still have wishes, feelings, preferences and dignity. They may be able to express views about where they live, who they trust, what they fear, or what matters to them.

I feel strongly that the legal process should not reduce someone to their diagnosis. Even where a litigation friend is needed, the person at the centre of the case still matters as a person.

This is particularly important in family proceedings, where the issues are personal and often deeply tied to identity, home and relationships.

When Family and Legacy teams need to work together

Dementia cases often sit across more than one area of law.

The couple may have in place Lasting Powers of Attorney organised before one of them lost capacity. If there is not an LPA and one of them loses capacity and cannot manage their financial and other affairs, someone will need to apply to the Court of Protection for a deputy to be appointed to deal with those matters. There may be questions about wills, trusts, lifetime gifts, jointly owned property, care funding or estate administration. There may also be safeguarding concerns if one person has been financially controlling or exploiting the other.

At Laurus, one of the advantages of a joined-up approach is that our Family and Legacy teams can consider these issues together where appropriate. That can be particularly valuable where a divorce has implications for capacity, estate planning or the management of assets.

A careful route through a difficult situation

Divorce where dementia is involved requires patience, sensitivity and legal precision.

The process may need to move more slowly. Evidence may need to be obtained. A litigation friend may need to be appointed. Financial disclosure may require additional scrutiny. The settlement may need to reflect long-term care and vulnerability.

What should not happen is that the person with dementia is left unprotected, or that the other spouse is denied proper advice because the situation feels too difficult to address.

In my experience, families are often relieved once there is a clear process. The uncertainty can be one of the hardest parts. Good advice cannot remove the emotional difficulty, but it can create structure around it.

These cases are emotionally hard, but they can be managed with care.

If dementia, mental capacity or vulnerability is affecting a separation or divorce, early specialist advice can help the family understand the legal position, protect the person who lacks capacity, and find a route forward that recognises both fairness and dignity for both parties. Contact Jacqueline Fitzgerald on jacqueline.fitzgerald@lauruslaw.co.uk or call on 020 3146 6300.