Only those with the mental capacity to make important decisions for themselves can consent to marriage – or divorce. However, as a High Court ruling made plain, it is in no one's best interests for the law to maintain a marriage that has become no more than an empty husk.

The case involved a couple whose marriage was already under considerable strain when the husband sustained a severe brain injury. Prolonged and expensive divorce proceedings followed but, more than 15 years on, they remained married. They had barely seen each other during much of that period.

With the support of a close friend, the husband sought a decree nisi. His petition was initially resisted by the wife, who was concerned that the dissolution of the marriage would be financially disadvantageous to her and, particularly, to the couple's adult children. However, she withdrew her opposition at the end of the court hearing.

Ruling on the matter, the Court had no doubt that the husband lacked capacity to consent to a divorce. Formerly a charismatic and energetic man, his condition had sadly deteriorated to the point where even the most rudimentary decisions were beyond him. He lived a largely reclusive life and there had been little, if any, contact between him and the wife for well over a decade.

Given such a long estrangement, the Court observed that the core features of what constitutes a marriage had evaporated. There was something inevitably corrosive of the status and importance of the institution of marriage in preserving a legal framework which, for both of them, had become a mere empty vessel.

The prevailing evidence indicated that, at a time when he still had decision-making capacity, the husband regarded the marriage as having irretrievably broken down. The wife, too, had come to regard the marriage as at an end. To maintain the status quo in those circumstances would risk demeaning all involved. Reaching the very clear conclusion that a divorce was in the husband's best interests, the Court found that a decree nisi was a necessary step that had been avoided for far too long.