Understanding Mental Incompetence and Divorce


  • Divorce cases involving a spouse who has been declare mentally incompetent can be difficult for both parties.
  • Mental cognizance and mental capacity are required in giving consent in both marriage and divorce.
  • Diagnosing a mental illness can help the divorce case of someone who has been declared mentally incompetent by the court

Making decisions is an essential part of everyday life. The ability to make them is something that we, as a society, often takes for granted. As an adult, to be unable to make decisions for yourself, would require an outside factor prohibiting you to do so. Sometimes, that factor is your own mentality.

Mental incompetence is legally defined as the inability of a person to make or carry out important decisions regarding his or her affairs. This inability prohibits an individual from consenting to their decisions and understanding their consequences. An individual can be defined as mentally incompetent if they are manifestly psychotic or otherwise of unsound mind, either consistently or sporadically, by reason of a mental defect.

When entering a marriage, the decision to consent to the act typically takes a mental cognizance to understand the decision the two individuals are about to make. Between the questions regarding marriages that are a result of impaired judgement and the discussion regarding the age requirements for consent of marriage, the ability to give consent has been a subject of great concern over the last few years.

The case

A recent ruling in Kentucky ruled against a man, Elmer Riehle, who was declared mentally incompetent by the courts who was attempting to file for divorce. In 2008, his wife and court-appointed legal guardian, Carolyn Riehle, persuaded a jury to declare her husband mentally incompetent, because he sent thousands of dollars to someone he believed to be “a Nigerian royal prince.”  In 2013, he filed for divorce, against her wishes.

Elmer Riehle has been fighting for his divorce in appeals courts for years. The recent ruling by the Kentucky Supreme Court stated that there was a precedent in 1943 that prevents him from filing.

The ruling in question stems from the case, Johnson v. Johnson. The case was brought up regarding fraudulent marriage, guardianship, mental capacity, and annulment. Between the allegations regarding the illegal and fraudulent marriage licenses, the appointment of a guardian, and questions regarding physical and mental capacities, the case created a controversial precedent that the Kentucky Supreme Court used in their present case, regarding legal separation and mental incompetence.

Subjective consent

Annulments are often discussed when a marriage is entered under what is considered subjective consent. The Modern Law Review classifies examples of subjective consent as follows:

  • The non-existent mind, which is defined as the prima facie (first-impression) rationality of the parties that is rebutted:
    • Mental weakness
    • Intoxication, drugs, hypnotism
    • Health
    • Duress and force
  • Abuse of, or mistake as to the nature of the ceremony:
    • Sham marriages
    • Mistake as to nature
    • Mistake as to effect
    • Mistake or error as to the person

Mental capacity

In addition, the ability to understand the actions being taken creates a great requirement for mental capacity. According to research at Duke University, in common law and generally today, the marriage of one lacking in mental capacity used to be treated as totally void, and thus open to collateral attack and to attack after the death of either party, except where statutory provisions have affected a different rule. The research states, however, there are presently different rules depending on the jurisdiction.

In a few states, express prohibition on collateral attack exists. In other jurisdictions, annulment procedure statutes, provided that the marriage of one lacking in mental capacity shall be void from the time it is decreed, have been constructed as making such marriages voidable only.

In some countries, such as the U.K., you can apply for a divorce if your spouse lacks mental capacity and cannot agree to or take part in a divorce case. The spouse in question would have to make someone their litigation friend to make decisions on their behalf.

If the spouse in question cannot find anyone willing and suitable to be their litigation friend, you can apply to the court to appoint one, which might cause the Official Solicitor to act on your spouse’s behalf.

Mental illness

Mental illness tends to create legal quandaries when it comes to pursuing a divorce. Mental capacity and cognizance is called into question. Depending on one’s mental state and whether or not they have a guardian or conservator, it can take many months or even years before the situation sorts itself out.

If you are the one suffering from mental issues, it is vital to your case that you get yourself diagnosed by a licensed professional, who, if asked, is willing to testify on your behalf. Attorneys can work with a formal diagnosis and argue your cause, on behalf of your wishes. Speaking of attorneys, do not try to represent yourself when attempting to argue your own mental competence. Trusted third-parties are taken more seriously in court.

Because of how damaging guardianship appointment can be, admitting that there is a problem regarding your mental state is a good strategy to gain your legal decision-making back.

The sensitive nature of mental incompetence and mental illness creates a moral dilemma, when it comes to the subject of divorce. The mental cognizance for consent for the divorce and the mental capacity to understand and consent to the proceedings are necessary, in order to move forward. Preparing yourself for the difficult challenge of it all, is another story entirely, but hopefully, you can go into the situation prepared and ready to make the difficult decisions.

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