Mental Capacity Assessment for Divorce

The assessment is the same rigorous process whoever instructs it. What changes is what you need to know first.

I am supporting a family member

You do not need to resolve the legal terminology before contacting us. Explain the decision causing concern and whether a solicitor or the court has asked for a report. We help clarify the assessment question and explain how the person can be supported to take part.

I am instructing as a professional

Please identify whether the concern is about the decision to end the relationship, capacity to conduct the proceedings or a separate financial matter. We work from the legal instructions and any court directions, so the report answers the question the case actually requires.

An independent social-work practice with an employed professional team and peer-reviewed reporting. Explore our mental capacity assessment services to find the right starting point.

Read how we evidence our scale on our Permanent Team, National Scale page, and how reports are governed and peer reviewed in our Professional Standards.

What is a mental capacity assessment?

A capacity assessment answers a particular question at the relevant time. We help the person take part and consider the decision they face. Under the Mental Capacity Act, any inability to decide must be caused by an impairment or disturbance of mind or brain.

The decision concerns ending the marriage or civil partnership itself: whether the person understands what divorce or dissolution means and what follows from it.

That is a different question from whether the person can run the case. Capacity to conduct the proceedings, and to give instructions on a financial settlement, is assessed separately.

An assessment may be requested where a change in cognition or mental health raises a genuine concern about the person’s decisions. It may also be needed when a solicitor or court questions their ability to participate in the case. Emotional distress or disagreement about divorce does not alone establish incapacity.

Your report explains the question, relevant evidence, support provided and conclusion, with clear reasoning and any limitations. Court-specific requirements are agreed before instruction.

A solicitor has raised a concern

A family solicitor is not satisfied the client understands the decision they are being asked to make.

Dementia or cognitive impairment

The person has a diagnosis that raises a genuine question about their understanding of the decision.

Concerns about influence

There are concerns that a relative or third party is driving the decision to divorce.

A financial settlement is in issue

A settlement is being negotiated and evidence is needed before it can safely be agreed.

The court has asked

The court or the other side has raised capacity and it has to be evidenced properly.

A litigation friend may be needed

The question of whether the person is a protected party has arisen alongside the divorce itself.

The assessment identifies the particular decision and its relevant information. This may involve understanding that divorce or dissolution ends the legal relationship and that separate decisions may arise about finances, housing or children. Detailed legal advice comes from the solicitor; the assessor considers the person’s ability to decide with appropriate explanations and support.

What divorce or dissolution is, and that it brings the marriage or civil partnership to a legal end

That they would no longer be married, and what that changes about their status and their rights

The broad effect on their finances, including any home, pension or inheritance rights

The broad effect on living arrangements and on contact with family

That the process takes time, involves the court, and is not easily undone once final

That they could take advice, wait, or decide not to proceed

Deciding about divorce and conducting the proceedings require separate attention. A person may express a clear wish about the relationship while struggling to manage a case, receive advice or give instructions. A report should identify which question it answers and whether another assessment is needed.

A person is entitled to end a marriage others think they should keep, or to stay in one others would leave. The issue is whether the person can make the relevant decision, not whether their family agrees with it.

A Divorce capacity assessment applies the Mental Capacity Act 2005 to the specific decision. The question is whether, at the time the decision needs to be made, the person can:

A person may have capacity for some decisions but not others. Divorce capacity must therefore be assessed as its own decision. Under the Mental Capacity Act, an inability to make this decision must result from an impairment of, or disturbance in, the functioning of the mind or brain. We explain that causal link using the evidence at the relevant time, after taking all practicable steps to support the person. A diagnosis or an unwise decision alone does not establish a lack of capacity.

Framework: Mental Capacity Act 2005 sections 1–3 and 27; the Family Procedure Rules and applicable capacity guidance for family proceedings. We agree with the instructing solicitor which decision and procedural question the report must address.

Read the supporting guidance

Understand the information relevant to the decision about Divorce

Retain that information long enough to make the decision

Use or weigh that information as part of making the decision

Communicate their decision by any means

Initial enquiry and triage

Tell us the decision, who needs the report and any deadline. We discuss the person’s needs and confirm the right service before booking.

Quotation and booking

Receive a written scope, fee including applicable VAT and agreed timetable. Travel and any additional work are explained before you proceed.

Assessment appointment

The assessor meets the person in an appropriate setting, explains the relevant information clearly and provides the support they need to take part.

Report preparation and peer review

The report explains the evidence, reasoning and conclusion. A second professional reviews it before delivery. Any court-specific requirements are agreed at instruction.

Secure delivery

Receive the report securely, with its findings and any limitations clearly explained. We respond to clarification requests within the agreed scope.

We review the documents relevant to the question and explain how to share them securely. The report distinguishes records, the person’s own responses and information supplied by others.

Medical records

GP summaries, hospital letters and any information about diagnosis or treatment that bears on decision-making.

The circumstances of the marriage

The history, the current living arrangements, and how the decision to separate has come about.

Financial and legal documents

A broad picture of the assets, any prenuptial agreement, will or property interest the divorce would affect.

Previous assessments

Earlier capacity assessments, cognitive testing or social care assessments, where these exist.

Care and support records

Care plans and daily notes that describe the person's presentation and any fluctuation over time.

Accounts from people who know the person

Observations from family, friends and professionals about the person's stated wishes and who has been involved.

A well-reasoned assessment explains how the conclusion has been reached, rather than simply stating an outcome, tied to the actual decision in issue.

The specific decision being assessed

Whether the person was given the relevant information in a way they can understand

Whether they understand the information relevant to the decision

Whether they can retain that information long enough to decide

Whether they can use or weigh the relevant information

Whether they can communicate their decision by any means

Whether any inability is because of an impairment or disturbance of the mind or brain

The support provided, the person's views, and the reasoning behind the conclusion

The assessment and fee on this page cover our standard service, which is suitable for most instructions. If your case is more complex, high-risk or potentially contested, additional evidence may help. We can advise on the appropriate scope before booking.

Explore Advanced and Enhanced assessments

£720 including VAT

Standard fee. Displayed service fees include VAT. Travel costs are confirmed separately. If your case needs additional evidence, follow the Advanced and Enhanced assessments link below to explore the scope and fees. Travel time is charged at £48 per hour including VAT (£40 excluding VAT) where applicable and is confirmed before booking.

Assessment appointment options

We arrange a face-to-face or remote assessment where suitable for the person and the decision being considered. For divorce decisions, the format must allow the assessor to explore the person's understanding clearly and respectfully. The appointment can usually take place at home, in a care home, in supported living, in hospital where appropriate, at a professional location or by video where this is clinically and legally suitable.

Gentle, professional assessment

The assessment is carried out calmly, with attention to communication, anxiety, fatigue and the person's preferred way of engaging. The person is not treated as a problem to be tested, but as the central decision-maker wherever possible. For divorce decisions, the assessor may need to explore sensitive personal information without turning the appointment into an interrogation or imposing personal values.

Decision-specific approach

The assessment focuses on whether a person can decide to end their marriage or civil partnership and understand the broad nature and consequences of that decision. It is not a general opinion about whether the person has capacity overall. The relevant information is tailored to the actual decision, including divorce instructions, family proceedings, financial remedy context, coercion concerns, dementia, mental illness, acquired brain injury, fluctuating capacity and disputes about whether the person can give valid instructions. This reduces the risk of a vague report that cannot properly assist professionals or the court.

Mental Capacity Act compliant

The assessment applies the Mental Capacity Act 2005 framework, including the presumption of capacity, practicable steps, the functional test and the need to avoid treating an unwise decision as incapacity. For this decision, the assessor considers whether any impairment or disturbance in the functioning of the mind or brain causes the person to be unable to understand, retain, use or weigh relevant information, or communicate their decision.

Relevant information for divorce

We use the person’s actual circumstances and an accessible explanation of the relevant choice. They do not need to predict every legal consequence or manage the proceedings unaided. The report distinguishes their own understanding and reasoning from advice, practical assistance and decisions that require separate legal consideration.

Written capacity report

Following the assessment, we prepare a written mental capacity report setting out the evidence, the MCA test, the decision assessed and the reasons for the opinion. The report can be prepared for families, solicitors, deputies, local authorities, safeguarding professionals or Court of Protection use depending on the instruction and the purpose of the assessment.

A solicitor has concerns about divorce instructions

A report may be needed where a solicitor has reasonable doubt about whether a client can understand and weigh the decision to divorce at the time instructions are being given.

Divorce and litigation capacity overlap

A person may need separate consideration of capacity to divorce and capacity to conduct proceedings. The divorce decision and the ability to manage litigation are not automatically the same question.

Coercion, financial abuse or family pressure

Capacity concerns may arise where there is evidence of pressure, vulnerability, financial motivation or inconsistent instructions that need careful and neutral assessment.

This is an illustrative example. It does not describe any individual client.

The value of the service lies in the assessment and the explanation behind it: the relevant expertise, a supported process, careful use of records and a written opinion that others can examine. Our role is to provide independent evidence within the agreed instruction.

For families

Know the work, cost and timetable before booking. We agree the appointment arrangements around the person’s needs and explain what the completed report will include.

For professionals

An employed professional team, with relevant expertise and a second professional reviewing the report. We agree the appropriate assessor and written output for your instruction.

Decision-specific, not generic

Focused on the exact decision in issue and the information relevant to it, not a broad opinion about capacity overall.

Court-ready reporting

Reports structured for solicitors, the Court of Protection and other professionals who need to rely on them.

Therapeutic assessment interviews

A calm, supportive conversation that helps the person engage as fully as possible.

Nationwide coverage

A permanent team covering England and Wales, in person or by video where appropriate.

Peer reviewed as standard

Every report is reviewed by a second qualified professional before it is issued.

Employed, not outsourced

A permanent full-time team, not an ad hoc panel of associates.

How quickly can a divorce capacity assessment be arranged?

Appointment availability depends on the location, the person’s needs and the work required. The published standard for routine reports is usually five working days from the assessment visit. We confirm the timetable for your instruction before booking; enhanced work, additional evidence and court requirements may need a different timetable.

How much does a divorce capacity assessment cost?

Most single-decision assessments are completed at our standard fee of £720 including VAT, with travel costs confirmed separately in writing. Fees can vary with the number of decisions, complexity and reporting requirements. If the case is complex or high-risk, we can advise whether additional evidence would help; see the Advanced and Enhanced assessments link below. Please see https://www.nelliesupports.com/prices or contact us for a written quotation for the specific instruction.

Can the assessment be completed remotely?

Sometimes. Remote assessment may be suitable where the person can engage effectively by video and the decision can be assessed safely and fairly that way. For sensitive or complex divorce matters, face-to-face assessment is often more appropriate, and we advise on the right format at the enquiry stage. Whichever format is used, the report applies the same decision-specific standard and is peer reviewed.

What happens if the person refuses to take part?

Please tell us if the person is reluctant or does not wish to take part. We consider whether better explanation, a different setting or other support could help. Refusal alone is not evidence of incapacity, and an assessment must not be presented as complete when the necessary evidence could not be obtained. Any authority to proceed requires separate consideration.

Is capacity to divorce the same as litigation capacity?

No. A decision about ending a marriage is different from capacity to conduct the proceedings. If litigation capacity is in question, the applicable family-court process must be considered. A litigation friend may be required; an assessment report does not itself appoint one or determine whether the divorce should be granted.

What if the assessment does not reach the conclusion we hoped for?

Our opinion follows the evidence. We explain the findings and any uncertainty, whether or not the conclusion matches the initial concern. Paying for an assessment does not buy a preferred outcome.

Mental Capacity Act 2005 explained

A plain English guide to the key MCA principles and the two-stage capacity test.

What is relevant information in a capacity assessment?

Explains why each capacity decision must be assessed using information specific to that decision.

How to prepare for a mental capacity assessment

Practical guidance on documents, context and support before an assessment appointment.

Remote versus face-to-face capacity assessments

Explains when remote assessment may be suitable and when face-to-face assessment may be preferable.

What makes a capacity report court-ready?

Explains the features of a clear, reasoned and decision-specific report.

If a different decision needs to be assessed, our team can help across the full range of mental capacity assessments.

We provide independent assessment and professional evidence. Legal advice and court applications remain with the relevant legal adviser.

Contact Nellie Supports to discuss a divorce capacity assessment. We will confirm the decision, the evidence needed, the likely timescale and whether a face-to-face or remote assessment is suitable.

Reports are typically delivered within 5 working days of the assessment visit.