D v S [2023] EWCOP 8

​Judgment concerning D’s capacity and best interests in divorce proceedings.

D, who had been an active man and was a joint director of a business with his brothers, suffered a severe brain injury in 2006 after taking an overdose. At the time, he was living separately from his wife S, the mother of their two children. Divorce proceedings had been commenced but rumbled on until, in April 2022, DJ Anson, the judge in charge of the case, suggested making an application to the Court of Protection in view of the issues around D’s capacity. The matter was further complicated by claims made by the wife that the brothers had taken advantage of D’s injury to misappropriate funds so the preservation of the marriage was a defence against this misconduct.  

Hayden J finds that, after hearing the medical evidence, it “so obvious that D lacks the capacity to consent to divorce that it is, in effect, redundant of any alternative coherent argument.” He then considers his best interests, taking account of D’s wishes which the prevailing evidence indicates D viewed the marriage as irretrievably broken down at a time when he had capacity and further recorded comments since then tallied with that view, despite a risk of manipulation. Evidence from one of the children also indicated that the brothers were circumventing D’s rights despite the marriage so Hayden concludes that granting the decree nisi is in D’s best interests. 

Read the full judgment on Bailii