Frequently Asked Questions
When navigating the emotional and legal challenges of divorcing a spouse with dementia, clarity is crucial. This FAQ is designed to answer the most common and difficult questions people face in this situation. Whether you're unsure about legal capacity, confused about lasting powers of attorney, or simply want to understand what support is available, this guide offers clear, compassionate answers from Jacqueline Fitzgerald, Family Partner at Laurus.
Can I get divorced if my spouse has dementia?
Yes, you can. A diagnosis of dementia does not prevent someone from being divorced. What matters is whether your spouse has the legal capacity to understand what divorce means and to take part in the legal process. If they do not, the court can still allow the divorce to go ahead with the help of a litigation friend, who represents their best interests.
What is “capacity” and why does it matter?
Capacity is a legal term that refers to someone’s ability to understand and make decisions. In the context of divorce, your spouse needs to have capacity to do two things: understand the nature and consequences of getting divorced and take part in the legal process itself. If they lack capacity in either of those areas, the process can still continue but with extra safeguards.
What happens if my spouse cannot understand what divorce is?
If your spouse is assessed as lacking capacity the court will appoint a litigation friend. This is someone who acts on their behalf to make sure their rights and interests are protected throughout the proceedings. It could be a family member, a professional, or the Official Solicitor if no one else suitable is available.
My spouse has a lasting power of attorney. Does that person deal with the divorce?
Not automatically. A lasting power of attorney usually applies to financial or health decisions, not to legal proceedings. If your spouse cannot take part in the divorce process, a litigation friend is needed to represent them in court. This might be the attorney, but not always.
How do we decide finances if my spouse has dementia?
The financial side of divorce still needs to be resolved. If your spouse cannot manage their own financial decisions, this will be handled by their litigation friend in consultation with their solicitor. If they have a financial attorney or deputy in place, that person will help implement any financial settlement, but they do not negotiate it or conduct the legal process themselves in that role as an attorney, although as mentioned above the attorney might also go on to be the litigation friend.
Is divorcing someone with dementia cruel?
This is one of the hardest emotional questions people face, and I never dismiss it. Feeling guilt or sadness is completely normal. It may simply reflect the reality of a changed relationship. Indeed, for some people the marriage had broken down before it was evident that their spouse lost capacity. With the right legal support, it is possible to proceed in a way that is respectful, compassionate and fair to both of you.
Do I need a specialist solicitor for this kind of divorce?
Yes. These cases are more complex than a typical divorce and involve specific legal principles around capacity and representation. I have supported many clients through this process and work closely with medical professionals, the court and litigation friends to make sure everything is handled correctly and with care.
