The Law Commission has just published far reaching recommendations to reform the law of weddings. Many of the changes are welcome and long overdue; society has changed enormously in the 73 years since the 1949 Marriage Act.

The recent media headlines focus on the relaxation of complicated rules and regulations, including the much greater freedom that will be given to couples who want to marry in a wide variety of locations – including on a beach (“Your sand in marriage” my favourite so far).

But will the reforms contain enough safeguards to prevent predatory marriages?

A predatory marriage is one where the vulnerability of a person is exploited by someone persuading them to marry.  The vulnerability could be caused by cognitive impairment, financial or other dependency, or cultural reasons. The classic example is an elderly person with 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. Sometimes the abuse may be carried out by a person who was originally a carer.

The terrible emotional and financial toll that can result from such a relationship is related by Daphne Franks who tells the shocking story of her mother’s abuse.  Joan Blass was an elderly lady with severe vascular dementia who, despite living next door to her daughter, was the victim of a predatory marriage that Daphne only discovered after her mother’s death.

Given the serious legal consequences of marriage – including the fact that it automatically revokes a will –  there is astonishingly little protection to prevent a predatory marriage.

As things stand, a concerned family member can lodge a ‘caveat’ at a specific Registry office, on the grounds that a person lacks the mental capacity to marry. It is a blunt tool. It may prevent a wedding – but at the risk of a subsequent hostile court battle over capacity. The threshold for having capacity to marry is much lower than that required to make a will. Also, importantly, the law assumes that someone has capacity and the burden of proving otherwise rests with the person making the assertion.

So, a predatory marriage is one where one party to it couldn’t give consent because they lacked mental capacity. Surely such a sham marriage can be annulled, so that any will made before it can take effect? Unfortunately, not.

If someone marries under duress, or lacked mental capacity, the law says that such a marriage is only ‘voidable’. This means that it remains valid unless and until a ‘decree of nullity’ is pronounced by a court. So even if a predatory marriage is annulled, any will made before the marriage is still revoked. Usually this means that after a victim’s death, their predatory spouse inherits under the intestacy rules (which apply if there is no valid will in place).

The Law Commission says that their recommendations provide safeguards, for example by ensuring that each of the couple is interviewed separately. This is in fact already guidance given to Registrars, but as no data is kept there’s no way of checking whether this happens. The Law Commission does not suggest how this guidance is to be monitored or enforced or what consequences might follow if it isn’t.

Next, they say:

“It will be possible for someone who is concerned that a person may be vulnerable to a predatory marriage to enter a caveat against that person getting married before notice of a wedding is given.”.

But this is already the law!

One change that may help is that notices of weddings are to publicised online. At the moment the only way to find out if a wedding is planned is to attend a Registry office in person. Couples will be able to apply for exemption from online publication eg if there is a potential threat from a violent ex partner. Will predators be able to ‘play the system’ and avoid online notification?

We are told:

”Officiants will have a specific duty to ensure that the couple freely express consent to marry during the ceremony. This duty necessarily includes ensuring that both parties have capacity to marry.”

What safeguarding training do registrars receive? None. How many of them are instructed on the legal test for capacity to marry? None. This is not a new problem. Ten years ago in the 2012 case of A Local Authority v AK & Others,  a very sad case involving a man, AK, who had a brain injury and was declared to have lacked capacity to marry, the Judge said this:

“This case has thrown up the role of Registrars and of the registration service when a borderline-incapacitated individual presents wanting to marry. It is not a Registrar’s job to assess mental capacity and plainly he or she would be wholly unqualified to do so. If there is doubt in the Registrar’s mind when an individual responds to the standard questions put at the notice-attestation meeting, then the procedure is for the doubt to be referred upwards, first to the local Superintendent Registrar and thereafter, if necessary, to the Office of the Registrar General. In a really tricky case, this could end up with a decision to call for a psychiatric report into capacity. That said, the standard handbook provided to Registrars presently says nothing about the need for mental capacity to contract a marriage and does not mention the Mental Capacity Act 2005. It may be that those responsible for the handbook would wish to consider the advisability of incorporating a paragraph on this, perhaps referring to the basic S3 requirements and summarising the information necessary to be understood and weighed up, with a note on what to do where an individual’s mental capacity to marry may be in real doubt. The experience of this case also suggests that greater emphasis should be laid on the need for the aspiring spouses to be seen separately, not together as happened here.”

I know of no changes made to the guidance for Registrars following this case.

As to the proposal that Daphne Franks is campaigning for, that marriage should not automatically revoke a will the Law Commission has this to say:

It is outside of the scope of this project on weddings law to consider the effect of a marriage on a person’s will. However, that issue is being considered by the Law Commission in our project on Making a Will. In our Consultation Paper on that project we have asked whether a marriage should continue to revoke a will. In the event that it does continue to do so, we have provisionally proposed that an exception should be made where, at the time of the marriage, a person had lost capacity to make a will. Those changes, if they become recommendations and are enacted, would solve one of the most significant financial consequences of a predatory marriage. By doing so, they would also remove an important financial incentive for those who embark on a predatory marriage.

What evidence is kept at a wedding so that checks can be made later as to whether someone had capacity to marry, let alone capacity to make a will (testamentary capacity)? None.

The devil as ever is in the detail – but on the face of it, will these reforms safeguard vulnerable people like from a predatory marriage? In my view the answer is a resounding ‘no’.

Sarah Young – Director & Solicitor