December 2, 2014

Mental capacity and financial consent orders in divorce

There has been an interesting decision by Mr Justice Mostyn sitting in the Family Division at the High Court in the case of MAP v RAP [2013] EWHC 4784 where it was ruled that a wife can apply to revoke a financial consent order which she agreed to at the time she was suffering from bipolar affective disorder and was representing herself. She had apparently agreed to the terms of the financial consent order which left the husband with approximately 80% of the family assets. The agreement also provided for a “clean break” leaving the husband with all of his earnings and pension and the wife with only a modest pension.

Mr Justice Mostyn found that the wife had an arguable case because she had lacked mental capacity at the time – the result being that she could not have consented to an order being made. The Judge also expressed his concern that the husband and his solicitors, who were apparently aware of her mental condition, had not alerted the court.

It has always been very clear, and the obligation is on both parties, to ensure that there is openness, honesty and transparency with respect to all issues in divorce proceedings. There are many circumstances which can lead to someone lacking the capacity to enter into a binding agreement. For example, people may suffer from a drug or alcohol addiction as well as a form of mental illness.

In a time when more and more people are representing themselves at court this is a timely reminder of a solicitor’s duty of care and of the consequences of not giving a judge the full facts.

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