In unfortunate cases where one spouse does not have the mental capacity to be able to make decisions or give instructions in relation to the proceedings then a litigation friend may be appointed.
A litigation friend is a suitable adult, appointed by the Court, to make decisions within the proceedings on behalf of the spouse who lacks capacity.
This can be a family member or friend, but they must not have an adverse interest / “conflict of interest” (i.e. their own personal interests must not clash with their ability to appropriately act as a litigation friend).
The court will expect a litigation friend to ensure the case is handled fairly and competently, act in the spouse’s best interests, keep the spouse informed as to the progress of the case, and make decisions that ensure the spouse’s wishes (in so far as these can be ascertained) are represented.
As the case progresses, the litigation friend will also be expected to attend court hearings, obtain (and promptly discharge the cost of) any legal advice, liaise and correspond with the other party, and complete and sign the requisite legal documents. They would also be liable for payment of costs orders made within the proceedings, although this is generally rare in these types of cases and usually only applies when litigation conduct has been poor.
If there is nobody suitable to assist the spouse as a litigation friend, then an independent public official (known as the “Official Solicitor”) can step in to act as a litigation friend instead.
If you have concerns about your spouse lacking capacity, then it is important to take legal advice and consider the next steps carefully. If it is determined that they lack capacity to engage or provide instructions in relation to a divorce and/or reach a financial settlement, an application can be made to the Court for a ‘litigation friend’ to be appointed for that person.
It is also advisable for a litigation friend to obtain legal advice to ensure their duties are properly fulfilled and the law is applied correctly.
At E J Coombs, we have experience in dealing with cases involving litigation friends. Please do not hesitate to contact us today, using the links below, to discuss your options further.
