Rachel Roberts joined Stowe Family Law in 2002 as a trainee solicitor. Since qualification in 2004, she has become one of the key senior solicitors in the practice. Notable highlights of her career to date were the location and securing by way of an injunction over a million pounds in assets and representing several well known television personalities. Her particular interest lies in ancillary relief and the tracing and protection of assets.

I once acted for a high-flying career woman. She ran a limited company and her professional reputation was superb. Her marriage had clearly been unhappy for a long time, and she had tried to compensate by throwing money at the problem. Unfortunately, she had neglected her business as a consequence. Her outstanding liabilities were significant, and the company was on the verge of collapse. Her work worries, combined with the eventual breakdown of the marriage, resulted in a serious bout of depression.

This case took more than two years to conclude. In the early days she gave regular instructions, her condition notwithstanding. However, it came to be that increasingly, long periods of time would go by when I could not obtain any instructions from her, for weeks or even months at a time. She repeatedly failed to comply with court deadlines. The husband reluctantly agreed to adjournments, which were sanctioned by the court, because there was little option but to do so when her health was taken into account.

Divorce is an emotional and difficult process for every person unfortunate enough to experience it. It can lead to depression, anxiety and stress and as lawyers, part of our job is to alleviate that stress wherever possible. Some clients may need more assistance than others; often, counselling can help.

On occasion, the breakdown of a marriage can have more profound effects upon a person’s state of mind and it becomes necessary to question whether a client has capacity to give instructions. Sometimes these are clients with a history of psychological or behavioural issues. For others, the stress of proceedings can lead to mental health problems. Either way, it is distressing for the client, difficult for their families and former partners and a challenge for the court, which must balance the parties’ competing interests.

In any divorce, parties are naturally suspicious of their former partners’ intentions. In the case outlined above, the lack of information provided by the client heightened suspicions. Eventually her psychiatrist concluded that she lacked the capacity to give instructions, pursuant to the Mental Capacity Act 2005. Such a decision places a solicitor in a difficult position: the client may continue to contact you, but you are unable to act upon their instructions. I had some difficult conversations with the client, as I tried to explain the situation.

So what happens in cases such as these? Well, once the doctor in question has completed a certificate confirming that the client does not have capacity, the next stage is to identify an appropriate person who can act in the client’s place. This can be a family member, a very close friend or another suitable person. In the case of my client, it was suggested that her brother could act. However he declined to do so, because she was vehemently opposed to anyone acting on her behalf. It was a difficult situation, and he clearly felt unable to go against her wishes.

If nobody can be found to act in the client’s place, the solicitor may approach the office of the Official Solicitor, who can represent a party if there no-one else is suitable. They will act as a “next friend” in the proceedings, standing in the place of the client to give instructions.

All of this sounds relatively straightforward, but other issues must be taken into account. For example, how is such a case funded? If the client qualifies for legal aid this may be less of an issue. If the client is paying privately, unless there is an obvious source of funding, an application to the Court of Protection may be required. Of course, all of these matters take time to resolve. In the meantime, no further progress can be made with court proceedings.

It is worth noting that when somebody has mental health problems, their capacity to give instructions can change from day to day. My client’s psychiatrist deemed her fit to give instructions once more, just before the Official Solicitor was about to intervene. On a later occasion, she was deemed to be unfit again.

Fortunately her health eventually recovered and she was able to give instructions. The case concluded with her full involvement. However, the case had been subjected to numerous delays, and because documents and accounts had to be repeatedly updated, the costs mounted.

The court’s role in a situation such as this is complex. It has a duty to both parties. The husband could have argued that he was being penalised because of the wife’s behaviour. However, the wife had a mental health problem, and her rights also had to be protected. On occasions, the husband in this case sought orders against the wife so that he could recover his costs. Those were successfully opposed because clearly, the wife could not be blamed for her mental health.

Inevitably, both parties were considerably out of pocket by the time the case concluded. The strain of the costs and the protracted proceedings resulted in the relationship between them – and indeed, between the wife and her children – deteriorating to such an extent that it may never recover.

What can solicitors do to help?  As solicitors we should always pay close attention to a client’s wellbeing.  It is difficult to decide that a doctor or the Official Solicitor needs to become involved; but if you fail to do so, you could do your client a grave injustice in the long run. You may not be aware of problems until you are contacted by a close friend or family member with the distressing news that your client has been “sectioned” or simply been too ill to respond to you over their case. 

The relationship between a client and a solicitor is one of trust and communication. Every client has to be considered as an individual. Extreme cases such as the one described above are rare, but milder forms of depression and medication can still leave clients feeling less than clear about their circumstances.

Recently, one of my clients told me that she was “in a haze” while she was on medication, and did not wish to make life-changing decisions at such a time. Some clients may feel that without medication, they cannot function. Experience of dealing with clients and their emotions helps a solicitor to make a judgement call on ability to deal with proceedings, but it is wise never to underestimate the emotional havoc that a divorce can wreak. If you are a solicitor, be wary of taking instructions from a client about whom you have concerns, without first approaching a doctor. Precautions can protect you against future redress, and can also protect your client from taking a decision that they may later regret.

Related Posts

Here is a list of other related blog posts that you may be interested in:

• Divorce: how to calculate “reasonable needs” – by guest blogger Rachel Roberts
• Don’t Separate In March! By Guest Blogger Nick White.
• Why Baroness Deech is wrong – by guest blogger Jonathan James
• Cohabitation: England v Scotland – by guest blogger Jenny Wilmot
• The CSA: Rachel Baul Answers Your Questions
• Cafcass & Private Children Law Proceedings – by guest blogger Jenny Wilmot
• Parent v Parent – by guest blogger Andrea Essen
• Tax havens and the G-20 Summit – by guest blogger Frank Arndt
• Prenuptial and postnuptial agreements: are they any good? – by guest blogger Robin Charrot
• Conflicting out divorce lawyers – the other side was here first