At this time of year, everyone loves a wedding…but there can be a darker side to matrimony*.

In Marina Lewycka’s darkly comic tale, ‘A Short History of Tractors in Ukraine’, the narrator is the daughter of an 84 year old widower who is pursued by a much younger predatory woman.  Valentina, a Ukrainian immigrant, latches on to the lonely father and marries him for his money.  It takes the combined efforts of his two adult daughters to free him from her clutches and obtain a divorce.

Sadly, predatory marriages are not confined to fiction. The distress that such marriages can cause to families is very real and damaging. I am currently acting for two brothers whose elderly father suffered from dementia.  He had a partner who lived with him. While he was well in previous years he had made 2 wills, both providing for his two sons to inherit his estate.  The partner isolated the father from his family over a period of time and tried to persuade him to change his will in her favour. When the sons made it clear that any new will would be challenged on the basis of their father’s dementia, she came up with a new idea.  She persuaded her elderly, infirm, confused and now isolated partner to marry her.

Marriage revokes a will and – as many will be astonished to discover – you do not have to have the same level of mental capacity to marry as you do to make a valid will.

The common law test for capacity to marry in England and Wales was established by the case of Durham v Durham in 1885.  The Judge said that the contract of marriage is a very simple one which does not require a high degree of intelligence to comprehend.  Other more recent cases, including A, B & C v X and Z in 2012 have reaffirmed the law.  That case involved an elderly recently bereaved father who had lost the mental capacity to manage his property and affairs – but was found to have sufficient capacity to marry.

When deciding whether someone has the capacity to marry, the Court must ask three questions:

(i) Does the person understand the nature of the marriage contract?;

(ii) Does the person understand the duties and responsibilities that normally attach to marriage?; and

(iii) Does the person have capacity to consent to sexual relations?

The rationale behind the law adopting a relatively low threshold is, to a degree, understandable. There are many individuals who may have limited mental capacity, often as a result of a learning disability, who should of course be allowed to enjoy the benefits of marriage.  On the other hand, having a low test of capacity to marry does mean that an unscrupulous predatory individual can latch on to an older vulnerable person and marry them, knowing that the marriage will revoke any previous will.  Often such a marriage will take place without the family being aware so there is no chance for an adult child to have their parent’s capacity to marry formally assessed.

After death, the predatory spouse will then benefit from the deceased’s estate under the intestacy rules. If the estate is worth over £250,000, the widow keeps all the assets up to £250,000 as well as all personal possessions, whatever their value.  The remainder of the estate is then shared on the basis that the surviving spouse has an absolute interest in half of the remainder. The other half is divided equally between the surviving children.  If the estate is worth less than £250,000, the surviving spouse inherits everything.

In addition, if for any reason the survivor feels that the intestacy has failed to make reasonable financial provision for them, they may be able to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 for extra provision from the estate.

The tragedy for the adult children of the first long marriage is firstly that they may be isolated from their parent and have concerns about their welfare ignored as they are not the ‘next of kin’. Secondly, on their parent’s death they may inherit nothing, despite being sure that this would not have been their parent’s wish. The law can do very little to assist. In some cases a marriage may be prevented by entering a caveat under section 29 of the Marriage Act 1949. The caveat must be lodged before the certificate authorising the marriage (not the marriage certificate) is issued.

After the marriage, an application could potentially be made for a declaration under section 18(1)(k) of the Mental Capacity Act 2005 that it would be in a person’s best interests for a petition to be presented on that person’s behalf (by a litigation friend) for the marriage to be annulled.  If granted, then section 12(1)(c) Matrimonial Causes Act 1973 provides that a marriage after 31 July 1971 can be set aside on the grounds that “either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise”.

However, the Court will not necessarily give permission; it may not always be in a person’s best interests for a nullity petition to be presented to annul the non-consensual marriage.

But it must be wrong that when someone who lacks the mental capacity to manage their property and affairs marries, that marriage automatically entitles the new spouse to inherit under the intestacy rules.

As we all live longer, dementia and other conditions that affect mental capacity will increasingly come into play as we age. Considerable wealth vests in the older generation and it would be foolish to ignore the fact that there will always be individuals who will seek to exploit those whose infirmity makes them vulnerable.

Marina Lewycka’s story had a morally satisfactory resolution.  The same cannot be said for many families watching on in horror from the side lines as an elderly parent is financially abused in a predatory marriage.

A sad story of a Radio 4 listener’s experience of a predatory marriage involving her mother, who suffered from dementia.

*Just to be clear, references in this article to ‘marriage’ apply equally to same sex marriage and civil partnerships.

If you require legal help or advice, get in touch on 0800 8 60 62 65.

Sarah Young Director – Litigation