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  7. Family Law Basics Series: Legal Capacity and Family Law
15 Aug 2017

In this series we will discuss the fundamental basics of Family Law, providing information and guidance that may answer questions you have throughout the Family Law process. This week, we discuss legal capacity.


The presumption taken by the courts is that every adult person has legal capacity to make their own decisions. Essentially, that you understand the significance of what you are doing. Therefore, upon attaining the age of 18 years, legal capacity is presumed unless it can be shown otherwise.


In particular, under Western Australian legislation, every person shall be presumed to be capable of:

  • looking after their own health and safety;
  • making reasonable judgments in respect of matters relating to his person;
  • managing his own affairs; and
  • making reasonable judgments in respect of matters relating to their estate.


Legal capacity is important for many reasons and without it a person is not able to:

  • vote;
  • prepare or alter a Will;
  • manage their financial affairs;
  • divorce or enter into a marriage;
  • make decisions about their property;
  • commence or defend legal proceedings; and
  • make decisions about their medical treatment or lifestyle.


Legal Capacity in Legal Proceedings

Having legal capacity when you are a party to proceedings is fundamental as issues can arise if a party to proceedings is found to lack legal capacity.


Proceedings must include natural justice i.e. ‘fair and proper procedures’.  If a party lacks legal capacity, they will not understand what is going on and this denial of ‘fair and proper procedures’ will call into question the validity of any outcome.



Who can assess Legal Capacity?

The question of whether a person lacks legal capacity is an issue for the courts to determine.  It is also the professional obligation of a lawyer, both to their client and the court, to raise the issue of a lack of legal capacity when it is suspected that a party is in such a position, whether it is the lawyer’s own client or another party to the proceeding.


If the court or a party to the proceedings suspects that a party lacks legal capacity, then the court may require the other parties to the matter to produce such evidence i.e. prove that the person in question has legal capacity. The best way to satisfy the ‘legal capacity test’ is to obtain medical evidence from the general practitioner of the relevant party.


If a party to proceedings is found to lack legal capacity, a case guardian can be requested and appointed in their stead. Please see our Article ‘What is a Case Guardian’ for more information regarding the role of case guardians in family law. 


How do we assess legal capacity?

Legal capacity can be assessed in many different ways. The most common options are undertaken by a solicitor or general practitioner via an initial capacity assessment by asking open-ended questions from which you can determine if the person understands the implications of a decision. The other option is to engage a medical professional in the assessment of cognitive capacity who will undertake a formal capacity assessment.


What can a Case Guardian do?

A case guardian has the ability to continue, commence and finalise proceedings on behalf of a party to proceedings.


An interesting example of this can be seen in the case of Kapilla & Kapilla where the case guardian applied for a marriage to be annulled when the husband remarried his divorced wife secretly. In this case there was medical evidence which demonstrated that he lacked the requisite capacity to have been an active, informed participant to marriage.


This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us now.

*This is general information only, and does not constitute specific legal advice. Please consult one of our experienced Legal Team for specific advice relevant to your situation.

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