Payments to person lacking capacity MCA 1973 s. 40
Court can order payments to a nominated person when the recipient lacks mental capacity; that person must act in the recipient's best interests. MCA 1973 s.40.
Where the court makes an order under this Part of this Act requiring payments (including a lump sum payment) to be made, or property to be transferred, to a party to a marriage and the court is satisfied that the person in whose favour the order is made (“P”) lacks capacity (within the meaning of the Mental Capacity Act 2005) in relation to the provisions of the order then, subject to any order, direction or authority made or given in relation to P under that Act , the court may order the payments to be made, or as the case may be, the property to be transferred, to such person (“D”) as it may direct . In carrying out any functions of his in relation to an order made under subsection (1), D must act in P's best interests (within the meaning of that Act).
Text in force at .
Source: legislation.gov.uk — The National Archives (legislation.gov.uk), reproduced under licence Open Government Licence v3.0.
What it actually says
When a court makes a financial order (like maintenance or a lump sum) under Part II of the Matrimonial Causes Act 1973 in favour of someone who lacks mental capacity (as defined in the Mental Capacity Act 2005), the court can direct those payments or property to be given to a third person instead of the recipient. That third person is then treated as the recipient for the order and must carry out their duties in the recipient's best interests.
This section applies only when the court is satisfied that the recipient lacks capacity specifically in relation to the provisions of the order. It does not create a separate route to challenge capacity; the court relies on the Mental Capacity Act 2005. The person nominated by the court is often a deputy or trustee, but the court has discretion to choose whom.
When it applies
- A divorcing spouse with advanced dementia is awarded a lump sum; the court orders the payment to be made to their court-appointed deputy.
- A former spouse with a severe learning disability is entitled to periodical payments; the court directs those payments to a family member who manages their finances.
- A property adjustment order requires transfer of the matrimonial home to a husband who has suffered a stroke and lacks capacity; the court orders the transfer to his attorney under a lasting power of attorney.
- A wife in a care home with Alzheimer's receives a pension-sharing order; the court appoints a solicitor to receive and manage the pension funds on her behalf.
What this section does not say
- This section does not define what 'lacks capacity' means – that is determined under the Mental Capacity Act 2005.
- It does not apply to child maintenance or financial orders for children; those are covered by other legislation.
- The court is not required to appoint a third party; it has discretion to do so only if it is satisfied that the recipient lacks capacity.
- It does not change the amount or terms of the underlying financial order; it only changes who receives the money or property.
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This page reproduces the text of MCA 1973 s. 40 in force at the date shown and explains it in general terms. It is not legal advice and takes no account of the circumstances of your case, which can change the answer completely. For a live dispute, for limitation periods, and before taking any step in court, consult a qualified lawyer in England and Wales.