Why the law on marriage needs to be changed?
A ‘predatory marriage’ is one where the vulnerability of a person is exploited by someone inducing them to marry. The classic example is an older person with cognitive impairments (e.g. dementia) who is taken advantage of by someone who is much younger than them. The relationship, which may be kept secret, involves exploitation for financial or other gain. Of particular concern when such a marriage takes place is the fact that it revokes a will.
After the death of her mother, Joan in March 2016, Daphne Franks found that a much younger man, age 68, had secretly married her mother five months previously. Joan was 91 with severe dementia and terminal cancer. Her will, leaving her estate to Daphne and her brother was revoked by her marriage and Joan’s spouse inherited it all under the intestacy rules.
The problem arises because the threshold for having capacity to marry is much lower than that required to make a will. The law assumes that someone has capacity and the burden of proving otherwise rests with the person making the assertion. This is often an adult child who is seen as a troublemaker, trying to preserve their inheritance and resentful of a ‘later life’ step parent. Sadly, grooming by a predator can mean that the victim may not even see themselves as such.
It was held in the 2017 case of EJ v SD that the capacity to marry should include a requirement that a person should 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 the person’s will”.
Daphne Franks is sure that her mother would have failed this test. But at the moment Registrars do not receive any training to identify symptoms of cognitive impairment. The General Register Office (GRO) has responded to Daphne’s demands for reform by updating the Registrars’ Handbook which provides guidance to Registrars; it was supposed to be updated at the end of May 2019 but has not yet been finalised. It will be a very positive and welcome development if procedures are strengthened, such as asking those who intend to marry more ‘open’ questions rather than ‘closed’ questions (such as ‘what is your name?’) which a vulnerable person can be coached to answer.
It is possible for a ‘caveat’ to be entered at a registry office to prevent a marriage taking place. But if the marriage takes place in secret, the victim’s family may not even find out until after their death that they were married. The case of Re Roberts in 1978 held that even if a marriage is annulled after the death of one of the parties because of a lack of capacity to marry, it will still revoke a previous will.
This is why I am campaigning with Daphne for a change in the law so that marriage no longer automatically revokes a will. To that end, Joan’s MP, Fabian Hamilton introduced the Marriage and Civil Partnership Consent Bill under the 10 Minute Rule in Parliament on 21 November 2018. The current position is that this legislation will take a lot of time and effort before it can become law. In the meantime, Daphne and I have spoken to many families who have been affected by this issue and we will continue to work to prevent this truly wicked form of financial abuse.
It must be right that someone is presumed to have capacity to make decisions unless it is proven that they do not. But, marriage has such important and far reaching consequences that it must also be wrong that the burden of preventing a predatory marriage is at the moment put almost entirely on the family of an older person.
By Sarah Young
Director – Litigation