As reflected in recent news coverage, predatory marriages are on the increase, particularly following the restrictions imposed for Covid-19.
A predatory marriage is where a, usually younger, individual marries an elderly person (often with declining mental faculties), with the sole aim of benefitting from their wealth.
Such marriage schemes invariably involve a level of grooming, with the elderly individual being influenced over time and concurrently socially isolated from friends and family who would have otherwise raised concerns or sought to have the marriage investigated or overturned. Covid-19, and the restrictions imposed to curb its spread, inadvertently created fertile ground for these marriages to take place.
Of course, wealth as a motivator is not in itself problematic (having indeed been a key objective in marriages for centuries), nor does the law require that individuals make wise decisions – one can make as unwise a decision as one likes, so long as they have the requisite capacity to do so.
Capacity to marry
One of the key tenets of a predatory marriage, and the aspect that raises concerns, is the allegation that the elderly individual did not have the requisite capacity to marry.
Capacity to marry carries a relatively low threshold of understanding. The leading case, 'Sheffield City Council v E & Anr', sets out the test as having been met if the person:
- Understands the nature of the marriage contract; and
- Understands the duties and responsibilities that normally attach to marriage.
The nature of marriage was described as a "simple one which did not require a high degree of intelligence to understand".
Sheffield went on to clarify that the duties and responsibilities attaching to marriage which needed to be understood, included an understanding:
- that marriage was a contractual agreement between a man and a woman to live together;
- to love one another to the exclusion of all others;
- that it was a relationship of mutual and reciprocal obligations, involving the sharing of a common home and a common domestic life; and
- of the right to enjoy each other's society, comfort and assistance.
'X City Council v MB, NB and MAB (By his litigation friend the Official Solicitor)' introduced the further requirement that on the basis that a sexual relationship is generally implicit in a marriage, the person must also have the capacity to consent to sexual relations (also a relatively low bar but not one to consider here).
It is notable that the financial implications of the marriage do not need to be understood or taken into account, particularly when marriage does have large financial consequences, not least in terms of the succession of someone's estate.
Consequences of marriage on succession
On a basic level the effect of marriage is to revoke any previous wills. Providing that the individual does not create a new will (and the test for testamentary capacity is relatively thorough), on death the elderly person's estate will pass under the intestacy rules, primarily benefitting the new spouse.
Given the differences in the test for capacity to marry and the test for testamentary capacity, if a nefarious individual is determined to benefit from a person's estate, it would be easier to marry them and benefit under the intestacy rules, than it would be for them to have their will changed in their favour.
Daphne Franks has been working to raise awareness of this issue, having experienced it herself when her mother, who suffered from vascular dementia, befriended and then married a much younger man. Daphne only became aware of the marriage after her mother's death. (See Predatory marriage: Families back marriage law change demand - BBC News and Predatory Marriage UK – Reforming marriage laws and procedures to protect people with dementia).
Ms Franks would like to see a change in the law so that marriage no longer revokes a will. Most people would not appreciate this consequence of their marriage and arguably revocation of a will should be made following active consideration of the issue, rather than as an automatic consequence of another act.
Whilst this might go some way to mitigating the effects of such marriages, even if the marriage meant that the spouse would not benefit under the intestacy rules, the spouse would nevertheless invariably have a claim under the Inheritance (Provision for Family and Dependants) Act 1975, such that it is likely that they would still benefit from the deceased spouse's estate in any event (although possibly to a much smaller degree).
The real issues are threefold:
- the test for capacity to marry being such a low threshold (and arguably outdated with references to modern understandings of marriage);
- registrars are not trained to conduct capacity tests when determining whether to marry someone; and
- registrars do not keep individual notes or records of their meetings with the individuals they are to marry. Consequently there is no evidence to prove any wrongdoing on the day.
It is arguably time to reconsider the test for capacity to marry such that it includes an understanding of the financial and other consequences of marriage. A reconsideration of the recognised duties and responsibilities attaching to marriage may also be necessary, given modern understandings. For instance, celebrities such as Helena Bonham Carter and Tim Burton famously lived in separate homes during their marriage; whereas others such as Will and Jada Smith have been open about the non-monogamous nature of their marriage. Does that make it less of a "marriage"? Most people would say not.
If registrars are adequately trained to conduct capacity tests prior to performing a marriage ceremony, then there is an extra layer of protection as it may prevent the marriage occurring in the first place. Similarly, better record keeping may provide the evidence necessary to dispute the marriage during the individual's lifetime.
According to the Alzheimer's Society, it is estimated that there are currently 850,000 living with dementia in the UK, and this figure is set to grow over the next few decades. While one hopes lockdown and isolation are not going to become a regular features of our lives, with an ageing and vulnerable population, there is almost certainly going to be an increase in predatory marriages.
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