Divorce: Mental Capacity, Wills and Visas

Every divorce or dissolution of a civil partnership is unique. At BTMK we look at each on a case by case basis. Your solicitor will always discuss the implications and options of your situation to deliver you the best legal advice.

What If My Spouse Lacks Mental Capacity?

You can still get a divorce if your spouse lacks the mental ability to agree to one or be involved in the process.

In this case the person who lacks capacity will need to have a ‘litigation friend’ to make decisions on their behalf. It’s often a family member or trusted friend, but if one cannot be found or no-one is willing to take on the role, you can apply to the Official Solicitor to appoint a litigation friend.

The Official Solicitor is a government body that helps under 18s and those who lack mental capacity.
If you’re in this situation, we advise you getting our legal advice as early as possible. And if you’re applying to be a litigation friend we can help with the relevant paperwork.

Making an Interim Will

In England and Wales when you marry, your spouse becomes the beneficiary of your estate.
And this is still the case if you are in the process of divorce.

If you die without a will, the Rules of Intestacy set out the way your estate will be distributed. And these rules do not recognise separation, unless you have gone through a Judicial Separation.
If for example you are deciding to divorce using the ‘two years’ separation’ reason, unless you make an interim will your spouse will inherit your estate.

How The Rules of Intestacy Work

If you are separated and have children your spouse would inherit up to £250,000 of your estate. The rest would be split 50/50 between your spouse and your children. So if you have two children your spouse would receive 50% of what’s left after the £250,000 and the remaining 50% would be split between the two remaining children.

Obviously, if the entire estate is less than £250,000 your spouse would inherit everything.

If you remarry your existing will becomes void.

You can also draft a new will ‘in contemplation of marriage’ that names a potential spouse as beneficiary in a new will.

Making a Will

How Does Divorce Affect Visa Status?

If you came to the UK as a dependent on your spouse’s visa then a divorce ends that status. If you want to stay, you’ll need to check you are eligible. You may need to apply for a new visa.

This is a specialist area of the law and our team can help.

For example you might be entitled to ‘indefinite leave to remain’ or if you have children, use what’s known as the parent route to stay in the UK. You might also be able to apply for a work visa through an employer.

If you divorce you might also be entitled to remain on the grounds of having a ‘private life in the UK’. For example:

  • If you’ve lived in the UK for at least 20 years continuously (if you’re under 18 it’s seven years continuously)
  • If you’re aged between 18 and 24, and have spent at least 50% of your time living continuously in the UK

Finally, you need to inform the Home Office that you’re separating or divorcing. It’s important as any future visa applications could be affected by not doing so.

Return to Divorce and Separation

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