Divorcing a spouse suffering from an illness such as Alzheimer’s disease or dementia is an enormous step. The additional guilt and anxiety associated with bringing a marriage to an end because of an illness which affects someone’s behaviour can be particularly stressful. This article looks into the ethical dilemma and explains some of the things you may need to consider.
Divorcing a spouse suffering from an illness such as Alzheimer’s disease or dementia is an enormous step. The additional guilt and anxiety associated with bringing a marriage to an end because of an illness which affects someone’s behaviour can be particularly stressful. This article looks into the ethical dilemma and explains some of the things you may need to consider.
If you have a family law issue and you require legal advice to understand your options, contact specialist family law solicitor Liza Gatrell. Vicki is a trusted and highly capable family lawyer and divorce solicitor and a Partner at the specialist family law firm, Stowe Family Law.
If you feel that the marriage has ended, even if your spouse has lost the capacity to make decisions because of Alzheimer’s disease or dementia, it is still possible to get separated or divorced.
Divorce and the capacity to make decisions
If you are divorcing a spouse who has been diagnosed with dementia or Alzheimer’s disease, one of the most important matters to consider is whether they have the “capacity” to divorce. How the separation or divorce is tackled depends on the other party’s capacity to make decisions. Whether someone has this capacity varies, depending on what they are seeking to do, but essentially, a person is presumed to have it unless established otherwise.
Capacity, or lack of it, is not established simply by reference to someone’s age, appearance, a diagnosis of dementia, a vulnerability, or an aspect of their behaviour. The law is clear that an individual should not be treated as unable to make a decision unless all reasonable steps have been taken to support and allow them to make their own decisions. Therefore, a spouse diagnosed with dementia or Alzheimer’s disease can still have capacity to deal with divorce, whether by initiating it or responding to proceedings.
The capacity to get divorced will be lower than the capacity needed to give instructions about a settlement of complex financial proceedings. However, in most marriages, particularly those involving older couples, financial negotiations will also be part of the divorce process. Care should therefore be taken because if a financial order is entered into by someone lacking capacity, it may be possible to subsequently set it aside.
If your spouse lacks capacity to divorce or reach a financial settlement, an application can be made to court to appoint a “litigation friend”. This can be categorised as someone who the court deems “suitable” and who will step into the shoes of the spouse and decide on their behalf. It is possible for the litigation friend to be a friend or family member, but they cannot have any interests that conflict with the person they are helping. As part of their appointment, they must confirm to the court that they are willing and able to take on the role of litigation friend and their own interests do not conflict with those of the person lacking capacity.
The Official Solicitor can also be appointed as a litigation friend if there is no one suitable who can assist. However, this will usually lead to higher costs and increased delays. Whoever assumes the role of litigation friend will be required to file a certificate at court within the divorce proceedings confirming their suitability.
Mental capacity can fluctuate, and it is not unusual for the stress of separation or divorce proceedings to have an impact. This may mean that more delays are experienced than otherwise in having the divorce finalised, and the court is likely to be sympathetic in allowing someone time to address their health issues. That said, the court will not allow a case to drift indefinitely.
How is mental capacity established for divorce purposes?
For someone to be deemed to have mental capacity in divorce proceedings, they must:
- Understand what divorce or dissolution is and what it will mean for them
- Be able to retain information they are given in relation to the legal process and any financial implications
- Consider the information provided as part of the decision making process; and
- Communicate their decisions and instructions to their legal representative
If there is any doubt as to whether someone has sufficient mental capacity, then a medical assessment may be required.
What criteria are used to divide property and assets?
The same legal criteria is used to determine the division of property when divorcing someone with Alzheimer’s disease or dementia, whether or not they have mental capacity. This will include consideration of each party’s housing needs, income and earning capacity, and their mental health. If your spouse has lost capacity, it is likely the court will need further information about their prognosis, which may include a future requirement for care.
The effect of Lasting Power of Attorney
If a spouse lacks capacity to deal with their financial affairs, an attorney appointed under an existing property and financial affairs LPA (Lasting Power of Attorney) should have the legal standing to decide on their behalf. Following divorce, a spouse will be removed from any prior appointment as attorney. If a spouse is appointed as a sole attorney or appointed to act jointly with another, then the existing LPA will be deemed null and void.
Are there any other options to divorce?
It is possible for couples to separate informally without going through any official or legal processes. Although this can be seen as the simplest way to resolve matters and avoid difficult conversations with family and friends, there are risks. Remaining married can affect means tested benefits, for example, and will also impact on how you plan for your own death and estate following it.
If you and your spouse have entered into LPAs appointing each other as attorney’s then these will remain in place if you don’t get divorced. Therefore, a separated spouse will still be able to decide for their partner with dementia.
An alternative to divorce is judicial separation. This is a more formal way of separating that is recognised by the court. Historically, this type of separation has been used for religious couples who are unable to get divorced. But it can also be used where there are financial and other benefits of remaining married. For example, a judicially separated spouse is entitled to a widow or widower’s pension on the death of the other.
Moral and emotional dilemmas when divorcing a spouse with dementia
Unlike many separations where both parties are capable of understanding the breakdown of the marriage, dementia can fundamentally change the nature of the relationship. The healthy spouse may feel torn between their own need to move forward with their life and a lingering sense of duty or compassion towards someone who is increasingly vulnerable.
Many spouses experience feelings of guilt when considering divorce in these circumstances. Marriage vows frequently include commitments to remain together in sickness and in health, and the onset of a degenerative illness can make the decision to separate feel like a breach of that promise. However, the reality is often far more complex. Dementia can dramatically alter a person’s personality, behaviour, and ability to communicate, sometimes leaving the healthy spouse feeling as though the partner they once knew has effectively disappeared. In such situations, the decision to divorce may arise not from abandonment but from an attempt to cope with overwhelming emotional and practical pressures.
These dilemmas are often intensified when the marriage had already been experiencing difficulties before the illness was diagnosed. In some cases, couples may have been living separate lives or contemplating divorce for years before dementia became an issue. The diagnosis can then complicate what might otherwise have been a straightforward legal process, creating uncertainty about whether pursuing divorce is morally acceptable or fair.
The impact of dementia on relationship dynamics
Dementia can significantly change the dynamic between spouses, often shifting the relationship from a partnership into a caregiving role. The healthy spouse may suddenly find themselves responsible for managing finances, arranging medical care, and making everyday decisions on behalf of their partner. Over time, the emotional strain of this shift can become immense.
The progressive nature of dementia means that the condition typically worsens over time. This can lead to increasing dependency, behavioural changes, and communication difficulties. In some cases, individuals with dementia may display aggression, paranoia, or confusion, which can place considerable strain on those around them. The caregiving spouse may feel isolated, exhausted, and emotionally overwhelmed.
These changes can also blur the boundaries between marital commitment and caregiving responsibilities. While many spouses remain committed to supporting their partner through illness, others may feel that the relationship has fundamentally transformed into something very different from the marriage they once had. Recognising this emotional reality is an important part of understanding why divorce may still be considered, even in circumstances involving serious illness.
Concerns about exploitation and family conflict
Divorce proceedings involving dementia can sometimes give rise to concerns about exploitation or undue influence. Family members, particularly adult children, may question whether the spouse seeking the divorce is acting in the best interests of the person with dementia. In some situations, relatives may suspect that financial motivations are influencing the decision.
These tensions can lead to significant conflict within families. Adult children may feel protective of the vulnerable parent, while the spouse may feel unfairly judged or misunderstood. In cases where large assets or property are involved, disputes may become particularly heated.
The law seeks to protect individuals who lack mental capacity by requiring safeguards within legal proceedings. If a person cannot properly participate in the divorce process, the court may require a representative to act on their behalf to ensure their interests are protected. This is consistent with the wider principles of the Mental Capacity Act 2005, which emphasises that any decision made for someone who lacks capacity must be in their best interests.
Even with these safeguards in place, emotional disputes between family members can complicate matters. Disagreements about care arrangements, financial settlements, or property division may escalate into prolonged legal battles that add further stress to an already difficult situation.
Financial pressures and long-term care costs
Another factor that can complicate divorce in cases involving dementia is the issue of long-term care costs. Residential care and specialised dementia support can be extremely expensive, often requiring substantial financial resources. When couples separate, decisions must be made about how these costs will be met and how assets should be divided.
The court must take into account the future needs of both spouses when considering financial arrangements. For a person with dementia, those needs may include ongoing medical care, specialised accommodation, or assistance with daily living. Predicting the likely progression of the condition and the associated costs can be difficult, which can make financial negotiations more complicated.
The potential for increasing care costs may also create ethical tensions during financial negotiations. For example, the healthy spouse may wish to retain sufficient resources to rebuild their own life, while the court must ensure that the spouse with dementia has adequate financial provision for their care. Balancing these competing needs is rarely straightforward.
The emotional burden on the healthy spouse
Divorcing a spouse with dementia can be emotionally exhausting. Even when divorce is considered the most practical solution, the healthy spouse may experience profound sadness and grief. The process can feel less like the end of a marriage and more like the gradual loss of a partner who is still physically present but mentally changed.
This emotional burden is often accompanied by a sense of social judgment. Friends, family members, and wider social networks may struggle to understand the decision to divorce someone who is seriously ill. The healthy spouse may therefore feel isolated or reluctant to discuss their situation openly.
In reality, every situation is unique. Some spouses remain deeply involved in their partner’s care even after divorce, maintaining regular contact and emotional support. Others may need to create distance in order to protect their own wellbeing. There is no single correct way to navigate these circumstances, and decisions are often shaped by a combination of emotional, practical, and financial considerations.
Planning for the future
Another issue that can arise in these cases concerns future planning. Dementia is a progressive condition, and individuals may eventually require significant support with everyday tasks, healthcare decisions, and financial management. Families may need to consider arrangements such as residential care, specialist medical treatment, or long-term financial planning.
In many situations, the divorce itself does not end the need for ongoing cooperation between family members. Adult children, attorneys appointed under powers of attorney, or court-appointed representatives may continue to play a role in supporting the person with dementia. The breakdown of the marriage can therefore create complex family dynamics that require careful management.
It is also important to recognise that mental capacity can fluctuate. A person with dementia may have periods where they are able to understand and engage with certain decisions, even if their overall cognitive ability is declining. Capacity is assessed in relation to a specific decision at a specific time, rather than being determined solely by a medical diagnosis. This means that each stage of the divorce process may require careful consideration of the individual’s ability to participate.
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