As Scotland's population ages and conditions like Alzheimer's become increasingly prevalent, more couples find themselves grappling with a heartbreaking reality: when a beloved spouse transforms from partner to patient, requiring full-time care and losing their mental capacity.

This situation raises difficult legal questions that many families are reluctant to even consider. Can you divorce someone with Alzheimer's? Should you? And might divorce somehow protect family assets from care costs? These are sensitive matters that require careful consideration of both Scottish law and the profound emotional impact involved.

The legal framework for divorce in Scotland

Under Scottish family law, divorce can be granted on several grounds, one of which is particularly relevant here. The Family Law (Scotland) Act 1985 allows for divorce where "since the date of the marriage the defender has at any time behaved (whether or not as a result of mental abnormality and whether such behaviour has been active or passive) in such a way that the pursuer cannot reasonably be expected to cohabit with the defender."

This provision for "unreasonable behaviour" encompasses a broad spectrum of circumstances. While it typically covers situations like domestic violence or persistent unreasonable conduct, it can also apply where mental incapacity has fundamentally altered the nature of the marriage relationship. The behaviour need not be deliberate or the person's fault; the law recognises that mental illness can create situations where cohabitation becomes unreasonable.

However, it's crucial to understand that establishing legal grounds for divorce is merely the first hurdle. The existence of a legal basis doesn't mean divorce is the right choice, nor does it guarantee the outcomes families might hope for.

The emotional reality

For most spouses, caring for a partner with Alzheimer's, divorce is an unthinkable option. These individuals have taken marriage vows seriously - "in sickness and in health, for better or worse" - and their instinct is to provide even greater care and support as their loved one's condition deteriorates. The suggestion of divorce during such a vulnerable time can feel like a betrayal of everything the marriage represented.

This emotional response is entirely understandable and reflects the deep commitment that characterises many long-term relationships. The decision to pursue divorce in such circumstances is never taken lightly and often involves agonising deliberation by families facing impossible choices.

The financial motivation: protecting assets from care costs

One reason families sometimes consider divorce is financial. Care for someone with Alzheimer's is expensive, whether provided at home through carers and nurses or in a residential facility. In Scotland, local authorities conduct means-testing to determine who pays for care, and these assessments can quickly deplete life savings that couples spent decades building.

Some families wonder whether divorce might protect assets by transferring them to the healthier spouse, potentially reducing the care costs that the person with dementia would be liable for. This thinking, whilst understandable, is fundamentally flawed for several reasons.

Why divorce won't protect assets

Scottish social work departments conducting financial assessments are sophisticated in their approach. They don't simply look at current bank balances; they examine financial history to identify artificial arrangements designed to avoid care costs. If assessors determine assets have been deliberately transferred or hidden - through gifts to family members, property transfers, or divorce settlements - they have the power to treat those assets as if they still belong to the person requiring care.

Furthermore, divorce doesn't make assets disappear; it redistributes them. Under Scottish law, financial provision on divorce follows principles of fair sharing, typically resulting in a roughly equal division of matrimonial property. If the spouse with Alzheimer's is awarded half the assets (or potentially more, given their additional care needs), those assets remain fully exposed to means-testing.
 
Scottish courts take their responsibilities seriously and won't ‘rubber-stamp’ artificial arrangements designed to circumvent social work assessments. Where one party lacks capacity, the court will appoint a curator ad litem or guardian to protect their interests, ensuring they receive fair treatment in any financial settlement.

Legal and ethical considerations

Beyond the practical ineffectiveness of divorce as asset protection, there are significant ethical considerations. Using someone's illness as grounds for divorce purely to avoid care costs raises serious questions about the marriage vows and moral obligations between spouses. Courts are alive to such motivations, so are unlikely to facilitate arrangements that appear designed primarily to defeat legitimate care cost assessments.

Scottish law views both marriage and divorce as serious legal commitments, not mechanisms to circumvent other legal obligations. Attempting to use divorce artificially could potentially constitute deliberate deprivation of assets, which local authorities are empowered to investigate and reverse.

The path forward

Families facing these difficult situations should focus on legitimate planning options rather than artificial schemes. These might include exploring available benefits, understanding care funding arrangements, and seeking proper legal advice about asset protection strategies that work within, rather than against, the legal framework.

What this means for families

Although Scottish law technically permits divorce where a spouse's mental incapacity makes cohabitation unreasonable, this option is rarely appropriate and won't achieve the asset protection that motivates many enquiries. Divorce is a serious legal process that should reflect a genuine relationship breakdown - not financial engineering.

For families caring for loved ones with Alzheimer's, the focus should remain on accessing proper support, understanding available benefits, and making decisions based on love and commitment rather than attempts to circumvent the system. 

However, people may want to go their separate ways for reasons that aren’t purely financial. Divorce or legal separation may be the only option, especially if coming after years of an unhappy marriage. Whatever the reason, professional legal advice tailored to individual circumstances remains essential for anyone facing these heartbreaking situations.