Capacity to Divorce: SL v SM [2026] EWFC 109

This was a judgment of Mr Justice Trowell in contested divorce proceedings. The two issues advanced by the husband were:

1. whether the wife had capacity to decide whether she wanted a divorce and whether she had capacity to conduct the proceedings, and
2. whether the divorce process set out in part 7 of the Family Procedure Rules 2010 is incompatible with the Human Rights Act 1998.

This blog will focus on the first issue.

At the time of judgment, the wife was aged 42 and the husband 75. They married on the wife’s 16^th birthday in Glasgow in 1999. Prior to their marriage there had been proceedings in England involving the wife which appeared to have been wardship proceedings, care proceedings and potential criminal proceedings arising from the wife’s relationship with the husband. The wife a that stage was diagnosed with a mental health condition known as de Clerambault’s syndrome, which she now said has been considered wrong although the husband disagreed. Shortly before the parties’ marriage, the English court considered whether or not the wife had capacity to marry and decided that she did, and whether there should be an injunction prohibiting her form travelling to Scotland to marry and did not make one.

The parties had 7 children, and care orders were made in relation to them. By 2016 the wife had formed a relationship with another man, and she separated from the husband. She then had five children with her new partner, which she said had not been taken into care although they were subject to scrutiny by the local authority.

In December 2023 the wife made an online application for divorce, which the husband sought to defend. The judgment sets out the full procedural history of the case and the various applications made, but focussing on the issue of capacity:

• The wife accepted that she was considered to have mental health problems when she was young and believed that the husband would try to control her during the relationship by telling other she had poor mental health. She said that, since separating from the husband, she had not had mental health problems, and she relied on the presumption of capacity as set out in section 1 of the Mental Health Act 2005. She also relied on a letter from her GP dated 2 June 2025 which said that she ‘displays no signs / symptoms of a mental health problem’, and ‘is of a sound mind and is able to make an informed decision whether or not she wants to divorce her husband’.
• The husband asserted that de Clerambault’s syndrome is a lifelong condition and that this diagnosis rebuts the presumption of capacity. He also said that Trowell J was bound by findings made in 1999 that the wife lacked capacity in respect of other proceedings. The husband said that the judge could not attach weight to the GP letter as he was not instructed as an expert, mental capacity was not his expertise, and he was not attending to be cross-examined. He said that the wife had changed her mind throughout the divorce process and sent him hundreds of emails wanting to restart their relationship (the wife gave a different account of some emails she sent to him).
• Trowell J was satisfied that the wife’s understanding of the consequences of divorce was as good as any ordinary person. She had been clear at all hearings before Trowell J that she wanted a divorce, had explained that this was because she did not want the husband to refer to her as his wife and did not want to be his wife, and she was aware that she would have a financial claim against him on divorce but did not want any of his money. She had also discussed the divorce with her current partner.
• Trowell J found that the wife did not present with any difficulty understanding the relevant information, retaining the information, using or weighing the information or communicating the information. She had missed a court appointment and appeared to have had second thoughts about the divorce, but neither suggested that she lacked capacity to make the decision to divorce.
• Trowell J decided that the GP letter could be relied on as hearsay evidence on an issue of fact, and that he was not bound by a historic diagnosis of de Clerambault’s syndrome or a previous decision of the court to consider that the wife was incapacitous.
• It struck Trowell J that ‘the capacity to divorce is obviously comparable to the capacity to marry’ and that the wife was found to have had the capacity to marry when she was just under 16.
• Trowell J had ‘no doubt in finding that she has capacity to decide that she wants a divorce’ and could see no reason in her conduct or interactions with him to assert that she lacked capacity to conduct the proceedings.

Whilst this judgment turned on the specific facts of the case, it provides useful guidance in respect of how the court will approach issues around mental capacity.

It also emphasises the importance of applying the presumption of capacity and that capacity is decision specific. Previous findings that an individual had or lacked capacity in respect of one decision cannot be applied to another, and the existence of a diagnosis does not in itself mean a lack of capacity.

Section 2(3)(b) makes clear that a lack of capacity cannot be established merely by reference to a condition or aspect of an individual’s behaviour, which might lead others to make unjustified assumptions about their capacity. In any case where an individual’s mental capacity is being considered, the two-stage test at sections 2-3 of the Mental Capacity Act 2005 must be properly applied.