Capacity to marry and separate

The court in A.B. v. C.D., 2009 BCCA 200 considered the interesting question of mental capacity of a spouse required to form the necessary intention to separate or enter into marriage. The husband refused to accept that his wife wanted to divorce him. He argued that his wife suffered delusions about him, and as a result she lacked the intention to permanently separate. A party must intend to permanently separate in order to obtain a divorce, and there must be no reasonable prospect of reconciliation to trigger the application of legislation governing property division. To establish his claim that the wife was delusional, the husband wanted the wife to submit to a medical examination. His request was refused. The court held that the mental capacity required to form an intention to live separate and apart is equivalent to the capacity to marry. In each case, the capacity required is less than the degree of competency necessary for an individual to manage his or her own affairs or instruct counsel. Because the husband conceded his wife could manage her affairs and instruct counsel, the wife had the mental capacity to decide that she intended to permanently separate and live apart from him. Although it wasn't necessary for the wife to provide a rationale for her decision, the court also noted that she provided one: she was unhappy with the interactions between her and her spouse over many years, and was happy to be living apart from him.