A predatory marriage occurs where a person enters marriage without having the required mental capacity to consent to the marriage and the other party procuring that marriage (the predator) does so for financial intention or gain. The effect is that the marriage will be “voidable”, which means the marriage continues to exist up until the time that it is declared “void” by a court. This means that if the vulnerable individual dies before a court becomes involves the predator shall benefit from the deceased’s Estate as any marriage automatically revokes any earlier Will.
Frequently predatory marriages occur by a form of grooming by the predator against the victim. The predator will frequently befriend the vulnerable individual acting as a friend or carer, seeking to form a “romantic relationship”. Gradually the victim will become isolated from family members and a marriage will often be arranged in secret and sometimes never divulged or revealed until after the death of the victim. This prevents any annulment of the marriage which can only occur upon the application by one of the parties to the marriage during the lifetime of both and generally within three years of the marriage itself.
As it stands, marriage revokes an earlier Will. Unless the victim of a predatory marriage has capacity to make a further Will and does so, should they die, the Law of Intestacy sets out how the individual’s Estate shall be divided. Currently this is:
Even under the Intestacy Rules a predator has the potential to achieve great personal financial benefit.
There are eight grounds listed in Section 12 of the Matrimonial Causes Act 1973 on which a marriage is voidable, including lack of consent. If either party did not validly consent to the marriage because of duress, mistake or soundness of mind an application can be made to the court to annul the marriage.
Mental capacity for marriage is set out in the Mental Capacity Act 2005. Section 1 says a person is presumed to have capacity unless proven otherwise. Section 2 requires evidence to substantiate a disturbance of the mind and Section 3 provides a functional test establishing a party’s ability to understand and process information, relevant decision making, retention of information and to weigh up and communicate decisions.
In Sheffield CC -v- E (2005) the High Court held that an individual has capacity to marry if he or she understands the nature of the marriage contract and the obligations that a marriage normally entails.
In London Borough of Southwark -v- KA (2016) the threshold for capacity was assessed quite low, the Court being satisfied that the vulnerable person only needed to understand and retain that it was part of the relevant information to a decision to marry that “there may be financial consequences”.
In NB -v- MI (2021) the Court held that the contract of marriage is a very simple one which does not require a high degree of intelligence to comprehend: a sexual relationship is not necessary for a valid marriage: there be may financial consequences to a marriage and following it’s dissolution, but it is not the essence of the marriage contract for the parties to know of, let alone understand, those consequences.
The capacity to marry is therefore thought to be lower than that required of testamentary capacity for the creation and execution of a Will set out in Banks -v- Goodfellow (1870) whereby a Testator (the person making the Will) must:
Prior to any marriage a Registrar should interview couples and assess both parties ability to consent to marriage. There is no requirement to check medical records, and whilst Registrars may be trained to notice the signs of forced and sham marriage, they are not medically trained to assess capacity.
Where there is knowledge of a possible predatory marriage, notice can be given to a Registrar. This usually requires some form of medical evidence on capacity, and there is an appeal process open to the parties.
An alternative if the victim to the predatory marriage lacks capacity is application to the Court of Protection for a Protective Order and form of injunction to stop the marriage.
If the person retains capacity an application through the Family Courts is available being a Forced Marriage Protection Order, more usually used in enforced young marriages.
If the marriage has occurred and the persons retains capacity, there is an option for either divorce or annulment. In the case of an annulment the voidable marriage would still be valid until the date of the Court Order and allows the court to make financial provision for the parties and children of the family.
If the marriage is annulled after the Will was made, any request or legacy to a former spouse will lapse and their appointment as executor to the Will shall have no effect.
If the victim lacks capacity and a Protective Order is considered necessary a Statutory Will application should be made to protect and preserve the Estate of the victim in a way in which the victim but for their lack of capacity would have wished to have provided for their heirs and successors.
No annulment can be obtained post-death and the predatory marriage will in effect have existed and be lawful.
There are opportunities for claims by disappointed beneficiaries under the Inheritance (Provision for Family & Dependents) Act 1975. The claimants would need to be qualifying applicants under Section 1 of the Act and capable of establishing a reasonable financial provision claim and need. There may be no guarantee that such claims would be successful.
The occurrence of predatory marriages appears to be on the increase. The concerning case of Joan Blass came to light following Joan’s secret marriage at the age of 91 while suffering from severe vascular dementia and terminal cancer. The marriage only came to light following her death in 2016 effectively disinheriting Joan’s son and daughter and Joan’s Estate passed to the predator under the Intestacy Rules.
These events encouraged the introduction of a private members bill, Marriage and Civil Partnership Consent Bill in November 2018. Although passed unanimously it ran out of parliamentary time. The proposals as drafted are not entirely fail safe and could create problems in other situations and because of this alternatives and changes to the Matrimonial Causes Act are open to possible alternative reform but this has yet to be addressed also. Presently the need to be conscious of the risk against predatory marriages continues and the effects of the Intestacy Rules on family remain to be guarded against.
The above is meant to be only advice and is correct as of the time of posting. This article was written by Kerry Hull, Senior Associate in the Contested Wills & Probate Team at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of September 2022.