Predatory Marriage; new law in Canada offers hope
A proposed change in the law in Canada may be a sign of hope to a campaign in England & Wales to prevent abuse of the elderly.
In an article lawyers Kim Gale and Marvin Seto explain that legislation that is passing through the Ontorio legislature in Canada is to change the law – which also applies in England & Wales – that marriage automatically revokes a will.
The problem is this; the elderly are more likely than most of us to make a will, and to have assets that make it important to do so, like a mortgage free home. But, an elderly person living alone at home is also a target for scammers.
A predatory marriage is one where the vulnerability of a person is exploited by someone inducing them to marry. The vulnerability could be caused by cognitive impairment, financial or other dependency, or cultural reasons. The classic example of a predatory marriage is an older person with cognitive impairments (eg 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.
No data is available on the prevalence of predatory marriage – largely because no one in authority is looking for it.
Of particular concern when such a marriage takes place is the serious financial consequences that follow, which the victim – and their family – may be completely unaware of. This includes the fact that in England & Wales, marriage revokes a will which means that, if no will is made after the marriage, the intestacy rules apply. As a result the predatory surviving spouse inherits most if not all of their victim’s estate.
While it may seem extraordinary, ‘predatory marriage’ is a very real and deeply disturbing phenomenon.
Over the last 3 years I have joined forces with Daphne Franks, whose mother was the victim of a predatory marriage, to campaign for a change in the law so that marriage does not revoke a will. We have both spoken to a number of people who have shared their stories with us – many prefer to remain anonymous either from fear of challenging the predator or shame and guilt that they failed to protect a loved one. We are deeply concerned about the inadequate safeguards to protect the elderly and vulnerable from a predatory marriage. Registrars do not have any training on safeguarding. They do not always see parties who are to be married separately. Even if they do, there are no standard questions to check even cursorily for understanding. Those with dementia, women especially, are often adept at ‘putting on a good show’; nodding and smiling even, while having no understanding of what is happening. A marriage where one party lacks mental capacity to give consent is in fact a ‘forced marriage’, but there is very little awareness of this.
Given the serious legal consequences of marriage there is astonishingly little protection for the vulnerable elderly (or those with a brain injury/learning disability) who can be groomed into marriage. No evidence is kept from a wedding, which may be held secretly if it is predatory or abusive. And of course, on the day of the wedding it will be, practically, a very difficult matter even for someone trained in assessing capacity to refuse to marry a couple.
Surely, I am often asked, a ‘predatory marriage’ can be annulled, even after death, so that the deceased’s will can take effect? Unfortunately not. Section 11 of the Matrimonial Causes Act 1973 sets out a number of grounds when a marriage can be annulled. For example, if the ‘spouses’ are closely related to each other, or because one of the parties was already lawfully married or in a civil partnership with someone else, or one of the parties was under the age of 16 years. It is then a ‘void’ marriage – it is as if it had never occurred.
On the other hand, if a spouse is found to have been under duress, or lacked mental capacity at the time of the wedding, such a marriage is only ‘voidable’. This means that it remains valid unless and until a decree of nullity is pronounced by a court. It also means that even if a predatory marriage is annulled, any will is still revoked by the act of marriage and the predator will usually inherit everything.
A change in the law in England & Wales is essential to reduce the attraction of an elderly or vulnerable person as a target for a scammer. As the authors of the Canadian article say:
“This amendment may not rid Ontario of predatory marriages, but it is a good place to start”
Likewise, we need to make a start in this jurisdiction before many more families experience the pain and trauma of this form of abuse.