Predatory marriages and wills
On 27 February 2023 the legal age for a person to marry in England and Wales was raised from 16 to 18 years. The law was changed to help protect vulnerable children from being forced into marriage. However, increasingly there are concerns about the older generations and their capacity to marry, which the new law does not address.
What is a predatory marriage?
The term “predatory marriage” refers to the situation where a person enters into a marriage with a vulnerable person, primarily for financial gain. Those targeted often include elderly people and those living with dementia. Although it is difficult to determine the number of predatory marriages taking place campaigners argue that, through a combination of an aging population, the problems facing adult social care and the increasing value of estates, predatory marriages are almost certainly on the rise.
When can a person get married?
The legal test for the capacity to get married or enter into a civil partnership is outlined in the Mental Capacity Act 2005. This states that “a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain”.
The threshold for whether someone has the capacity to consent to marriage is a low one. The court has ruled that for a person to marry they must “understand, retain, use and weigh information as to the reasonably foreseeable financial consequences of a marriage, including that the marriage would automatically revoke his will.”
A marriage or civil partnership entered into by someone who lacks capacity is voidable and can be ended through an annulment or divorce.
What is the impact of a predatory marriage when a person dies?
Under the Wills Act 1837, a marriage or civil partnership automatically revokes an individual’s Will. The exception to this is if they made the Will in contemplation of marriage, and included a specific clause that the Will was not to be revoked on the formation of the marriage or civil partnership.
This legislation often has significant consequences for those people subject to predatory marriages. If the vulnerable person dies after the marriage but without making a new Will, their estate will become subject to the statutory intestacy rules. This means that their new spouse or civil partner would automatically receive the whole, or a significant proportion, of the estate, depending on its value and whether or not the vulnerable person has children.
Complications can also arise where the vulnerable person intends to make a new Will, but are prohibited from doing so because they have lost capacity. The capacity test for making a Will is higher than the capacity test for marriage. If the vulnerable person lack the capacity to make a new Will, they may be stuck with the rigid and outdated intestacy rules. In these circumstances, the family can make an application to the Court for a statutory Will, but this is a difficult, lengthy and costly process.
What can you do if you have concerns about a family member entering into a predatory marriage?
If you suspect that a family member is entering into a predatory marriage, it is imperative that you communicate your concerns as soon as possible. If the wedding has not yet taken place, you can alert the marriage registrar about the potential marriage. Reporting your concerns to social services or your local authority may also allow room for intervention.
If the wedding has already happened and there is evidence that the person lacked capacity, you should speak to a legal advisor about making an application to the court for an annulment of the marriage.
If the person did have capacity when they married, it is important that they seek advice about making a Will to ensure that their estate passes in accordance with their wishes. This should be done as soon as possible, especially if there is a risk that capacity may be lost soon after the marriage. However, it must be the choice of your loved one to make a new will. If they are deemed to be subject to “undue influence” to make a the new Will, this would make the Will invalid.
Is the law likely to change?
There have been a number of recent calls for legal reforms which greater protect victims of predatory marriage. In 2018 MP Fabian Hamilton presented a Private Members’ Bill (Marriage and Civil Partnership Consent Bill) on the issue to the House of Commons. This was done with the purpose of stopping marriage from automatically revoking previous wills and to introduce harsher laws against predatory marriage. This has not yet progressed any further in Parliament.