Predatory marriage refers to the targeting of a vulnerable adult with the intention of marrying them for financial gain. The most common example is when elderly people living with dementia are targeted by, usually younger, partners who convince them to marry in secret.
This is an issue when considering inheritance because when someone gets married, any Will they made previously is automatically revoked. This means that the person’s new spouse will inherit once their partner passes away, potentially leaving other family members with nothing.
Because the threshold for capacity to consent to marriage is lower than the threshold for capacity to give instructions for a Will, someone living with an impairment such as dementia could be deemed to have capacity to marry even if they do not have the capacity to give instructions for a new Will.
In a 2017 case the Court said that to have the capacity to marry someone would need to “be able to understand, retain, use and weigh information as to the reasonably foreseeable financial consequences of a marriage, including that the marriage would automatically revoke [their] will."
Despite this judicial ruling, marriage registrars have no legal training in assessing capacity.
Forced marriage rules.
There are rules in England and Wales relating to forced marriage which has been illegal since 2014.
The Anti-social Behavior, Crime and Policing Act 2014 attempts to protect those that have been coerced into marriage including protecting those who cannot consent due to learning disabilities. The Act allows the Court to stop marriages if they are satisfied that consent has not or cannot be given.
This year a Court have banned a man from marrying his female partner who is living with dementia.
The woman has a £1 million Estate and the woman’s daughter was concerned that her mother’s partner only wanted to marry her mother for financial gain. The daughter had called the police after discovering that her mother’s partner had a history of conning vulnerable women. Her daughter brought action through the Courts and was granted a forced marriage protection order.
The forced marriage order has been granted for 12 months in which the man is not permitted to see his partner, marry her, or enter a civil partnership with her.
The law was used effectively in this instance but difficulties arise when someone is convinced to marry in secret shortly before their death such as in the situation below.
Is reform on the horizon?
A campaign has been started by Daphne Franks to change the marriage laws to protect vulnerable adults. Her mother, Joan Bass, was 91 and was living with severe dementia and terminal cancer when she passed away in March 2016. The family then discovered that 5 months prior to her death she had secretly married a man aged 68.
The marriage revoked the Will Joan had made in 2004 which left her Estate to her children meaning the intestacy rules applied so her new husband was set to inherit her estate. No one in the family knew about the marriage and her family believe that Joan did not remember that she was married or that she had capacity to consent to the marriage. Joan’s family lost their inheritance and their right to arrange their mother’s funeral.
Her children have started a campaign with the aim of (amongst other things):
- Changing the law so that marriage does not revoke a Will;
- Creating an offence of predatory marriage;
- Training registrars to look for signs of insufficient mental capacity; and
- Check that anybody named on a Power of Attorney is aware of the marriage before it takes effect.
Labour MP Fabian Hamilton has proposed new legislation to tighten the law but it remains to be seen whether this will be adopted but in the meantime if you have any concerns on the matters discussed in this article please contact Elyse Palmer of Mayo Wynne Baxter on 0800 84 94 101