[This post is a joint effort by me together with Neil Allen and Emma Spruce, Counsel acting for D in the case of D v S  EWCOP 8 and Joanna Crichton, their instructing solicitor at Hill Dickinson]
In 2021, the Supreme Court recognised in A Local Authority v JB  UKSC 52 that individuals with cognitive impairments may wish to exercise sexual agency, by reframing the relevant question for purposes of considering their capacity from being one of consent, to the decision to engage in sexual relations. Two years later, in D v S  EWCOP 8, the Court of Protection has confirmed that a person with a cognitive impairment may also wish to bring their marriage to an end, not solely to act as a respondent to an application, but as petitioner. In the decision, Hayden J also outlined both the likely core components of the test for capacity to divorce, and, implicitly, that the Court of Protection has an appropriate role to play where there may be doubt as to whether divorce is in the best interests of the petitioner.
There had been a previous dearth of case-law in relation to this issue. In Mason v Mason  Fam 302, Sir George Baker P had observed:
This is the first time, I think, that this question has arisen for decision, but I have no hesitation in coming to the conclusion that the test for the capacity of a man to give a valid consent for the dissolution of his marriage is exactly the same as the test for the validity of the contract of marriage, and that is the test propounded in In the Estate of Park, decd.
However, Mason v Mason considered the position in relation to a person responding to the desire of the other to bring the marriage to an end. It might not necessarily be said that the test for consenting to such a situation is the same as the decision to initiate proceedings to bring a marriage to an end. There were reported cases (including Mason v Mason itself) in which the Official Solicitor had acted on behalf of the respondent to divorce proceedings, and also cases where the court had directed the Official Solicitor to initiate proceedings to declare a marriage a nullity where it had been found that the person on whose behalf the Official Solicitor acted had not had the capacity to marry.
However, the only reported English case in which there had been judicial consideration of the question of the initiation of divorce proceedings took place under the very different receivership regime under the pre-1983 Mental Health Act. The Mental Capacity Act 2005 itself is silent on the subject, the only reference to divorce being the statutory bar upon the grant of consent on a person’s behalf to a decree of divorce being granted on the basis of two years’ separation in s.27(1)(c).
The decision in D v S is therefore very helpful confirmation of the following points:
- As to the relevant information for purposes of the decision to divorce, which Hayden J “broadly agreed” to be same as that required to consent to marriage, i.e.
(i) The broad nature of the marriage contract;
(ii) The duties and responsibilities that normally attach to marriage, including that there may be financial consequences and that spouses have a particular status and connection with regard to each other;
(iii) That the essence of marriage is for two people to live together and to love one another.
- That it is necessary to tailor the information to the particular information in the context of their own circumstances;
- That if the person lacks capacity to decide to divorce, proceedings can be continued on their behalf by a litigation friend if they lack capacity to conduct those proceedings. Logically, this must also apply to the decision to initiate divorce proceedings;
- That the ultimate question is whether divorce is in the person’s best interests.
- The Court of Protection has jurisdiction to determine whether a divorce is in the person’s best interests (or, perhaps more accurately, to determine that the litigation friend can proceed in the Family Court on the basis that they are acting in the person’s best interests in pursuing a divorce on their behalf, as a judge of the Court of Protection cannot themselves grant a divorce decree as that is reserved to judges of the Family Court and Family Division).
What the decision does not expressly address is the question of whether a litigation friend is required to bring an application to the Court of Protection for determination of whether divorce is in the person’s best interests before initiating any proceedings. Re W case, decided under the pre-1983 Mental Health Act regime, suggested that an application to the (old) Court of Protection was mandatory, but that was at a point where there were specific limitations upon receivers and their ability to act independently of direction from the Court of Protection in relation to the patient’s affairs. From the Family Court’s perspective at present, the rules in relation to the ‘status’ of a litigation friend appear to suggest that ‘any act’ (therefore encompassing pursuing a divorce) can be conducted by a litigation friend properly appointed within Family proceedings, so long as the litigation friend meets the criteria that they ‘must fairly and competently conduct proceedings; and have ‘no interest adverse to that of the protected party’. The Family Procedure Rules do not, however, provide for the Family Court to address the situation where, as it was alleged in the present case, a litigation friend is said to be acting in a manner contrary to the best interests of the protected party.
The observations by Hayden J about the potential for an invitation to be granted within the divorce proceedings under s.8 Matrimonial Causes Act 1973 to the King’s Proctor outline a potential route to resolve a Family Court’s judge’s doubts. We suggest that that route would be obviously applicable to the situation where there is doubt as to whether the litigation friend is acting in the best interests of the person in the way that they are conducting the proceedings, if the Family Court judge is unable to make the determination themselves. However, it may not obviously be so applicable to the situation where there is no question that the litigation friend is proceeding on a proper basis in terms of the conduct of the proceedings, but the real question is whether divorce, itself, would be in the best interests of the person. In such case, we suggest that it may be the case that the holistic determination of best interests could better be conducted before the Court of Protection. If so, the critical points are (1) there should be no delay in bringing proceedings before the Court of Protection; (2) front and centre in the application will need to be materials to enable the court to form the fullest possible picture of what the person would have chosen to do in the present circumstances; and (3) the matter should be listed before a judge who is ticketed to sit in both the Court of Protection and Family Court.
 Park’s Estate, Re; Park v Park  P 112;  3 WLR 1012, i.e. was the person “capable of understanding the nature of the contract into which he was entering, or was his mental condition such that he was incapable of understanding it? To ascertain the nature of the contract of marriage a man must be mentally capable of appreciating that it involves the responsibilities normally attaching to marriage.
 See e.g. XCC v AA & BB & CC & DD  EWHC 2183 (COP).
 Canadian cases have considered the position: Boswell v Boswell 1951 CanLII 380 (AB KB), and also Re Calvert 1997 CanLII 12096 (ON SC) (affirmed by the Ontario Court of Appeal 1998 CanLII 3001 (ON CA).
 In Re W  Ch 123.
 Paragraph 24.
 As set down by Munby J in Sheffield City Council v E  EWHC 2808 (Fam), relating to capacity to consent marriage apply, by parity of analysis, to the decision to divorce i.e., can the protected party understand:
 Paragraph 24.
 Paragraph 30. Note that at that point, Hayden J was sitting as a judge in the Family Court, considering whether to grant a decree nisi, rather than a judge of the Court of Protection. But – albeit in a very compressed fashion – the logic of his decision must have been that it was in D’s best interests to continue the petition for a divorce.
 See the commentary to FPR 15.2 in the 2023 of Family Court Practice.
 We note that courts are used to resolving questions as to whether litigation friends are acting fairly and competently: for helpful overviews of the principles see Shirazi v Susa Holdings  EWHC 2055 (Ch) and also Hinduja v Hinduja & Ors  EWHC 1533 (Ch).