Court Cases & Orders Divorce 101

Mental Capacity to Marry, Separate, or Divorce

old man sitting in camper doorway colourful
Written by Russell Alexander / (905) 655-6335

Recently I talked about the Family Law case involving Canadian boxing legend George Chuvalo, who is at the centre of a court battle between his two adult children on the one side, and his wife of 24 years on the other.  The key legal issue is whether the 80-year-old Chuvalo has the mental capacity to make his own decisions, including the one about whether to divorce his current wife.

In the course of reaching its decision, the court makes some important general observations about the nature of “mental capacity,” particularly as it applies to the Family Law context.  It examined the relevant case precedent, and gleaned the following points around how a person is assessed for “capacity” to marry, separate, divorce, or make other personal decisions:

1) The needed level of mental capacity can vary. 

  • A person’s right of self-determination is an important philosophical and legal principle.
  • A person can be capable of making a basic decision and not capable of making a complex decision.  There are varying degrees of capacity.
  • Each threshold is assessed separately. The ability to manage finances, consent to treatment, stand trial, manage personal care, make personal care or health decisions, all require separate decision-making capabilities and assessments.
  • This means that the capacity to separate, the capacity to divorce and the capacity to instruct a lawyer in connection with a divorce are also all assessed separately.

2) The thresholds are different for marriage, for separation and for divorce.

  • For marriage, a person will not have the legal capacity to marry unless he or she is capable of understanding the nature of the relationship and the obligations and responsibilities it involves. This involves understanding the nature of the marriage contract, the state of previous marriages, one’s children and how they may be affected.
  • Separation is the simplest act, requiring the lowest level of understanding.   A person only has to know with whom he or she does or does not want to live.
  • Divorce, while still simple, requires a bit more understanding. It requires the desire to remain separate and to be no longer married to one’s spouse.  It is the undoing of the contract of marriage, which has been described as not requiring a high degree of intelligence to comprehend. (In contrast, financial matters are taken to require a higher level of understanding).

What’s the take-away?  Two things:  1) The needed level of mental capacity can vary with the decision being made; and 2) In this age where people are living longer than ever, it’s important to understand the legal tests that apply to various kinds of decisions, especially where it may be an elderly or infirm loved one who is making them.

For the full text of the decision, see:

Chuvalo v. Chuvalo


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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.