Divorce is always a difficult decision, but when one spouse has dementia, the situation becomes particularly sensitive. The legal, emotional and practical issues that arise can be overwhelming both for the person with dementia and their loved ones.
In this article, we explain how the law in England and Wales approaches divorce where one spouse is experiencing cognitive decline, and how families can be supported through this challenging time.
Can Someone with Dementia Get Divorced?
The key question the law asks is whether the person with dementia still has the mental capacity to understand and take part in the divorce process.
Under the Mental Capacity Act 2005, everyone is presumed to have capacity unless proven otherwise. A person may still have the ability to make certain decisions like choosing what to eat or wear but may no longer be able to understand complex legal proceedings. If a person lacks capacity to engage in a divorce, the Court can appoint a litigation friend (often a family member or the Official Solicitor) to represent their interests.
No-Fault Divorce: A Simpler Legal Process
Thanks to the Divorce, Dissolution and Separation Act 2020, you no longer need to give a reason like adultery or unreasonable behaviour to get divorced. This change has made it easier for spouses to separate without placing blame which is especially important in cases involving dementia, where communication and understanding may already be difficult. That said, the court still has a duty to protect vulnerable people. If it appears that the person with dementia is at risk of harm, neglect or financial exploitation, the Court will look very carefully at what is being proposed.
Sorting Out Finances and Future Care
One of the most important parts of the divorce process is making sure that both spouses including the one with dementia are financially secure.
This often involves:
- Deciding how to divide the family home
- Planning for care costs (whether in-home or residential)
- Sorting pensions and savings
- Making sure lasting powers of attorney or deputies are in place if needed
In a recent case, the Court made sure that a wife who had lost capacity due to illness still received a fair share of the couple’s assets so she could be properly cared for. The Court’s message is clear being vulnerable doesn’t mean you’re entitled to less, quite the contrary.
What About the Court of Protection?
If the spouse with dementia can’t manage their finances and no one has legal authority to help them, an application may need to be made to the Court of Protection. This court decides financial, and welfare matters for people who lack capacity.
A deputy can be appointed to manage money, or the Court can approve financial arrangements linked to the divorce for example selling a house or sharing a pension, if it’s in the person’s best interests.
Taking a Compassionate Approach
Every family’s situation is different. Some people feel a deep sense of guilt about seeking a divorce when their spouse is ill. Others are facing burnout as long-term carers, or simply want to move forward while still ensuring their spouse is safe and supported.
We always encourage clients to consider counselling or family mediation where possible and we work closely with other professionals to make sure both legal and emotional needs are addressed.
How We Can Help
At JPC, we have experience supporting clients through divorce involving dementia and other capacity-related issues. We offer clear, sensitive advice and we’re here to protect your rights while helping you plan for the future with confidence.
If you’re facing a similar situation and would like to speak to someone in confidence, get in touch with us today.
If you would like more information or wish to discuss this topic further, please feel free to contact Monika Brar at JPC for a free initial 30-minute consultation.
Email:mbrar@jpclaw.co.uk
Tel: 020 7644 6305
