The rise in predatory marriage

Increased longevity, combined with loneliness, appears to have resulted in a rise in “predatory marriage”, or at least to greater recognition that this type of marriage (or civil partnership) exists. A predatory marriage is one that takes place between a vulnerable person (often older than their partner) and another person (often substantially younger) with a view to financial gain for the younger partner.

A predatory marriage can lead to a person losing their life savings and being financially abused. It can also result in the vulnerable partner’s children being disinherited.

The abolition of automatic revocation of Wills

Marriage automatically revokes an existing Will. If no new Will is drawn up, under the intestacy rules £270,000 will pass to the surviving spouse, plus half the deceased partner’s remaining assets, together with any jointly owned assets. This may be much more than a vulnerable person with children from a previous relationship may have wanted to pass to the second spouse.

It has been suggested that this rule could be abolished, so that on death the estate would pass according to the provisions of a Will drawn up before the marriage (unless a new Will has been made). This change may benefit the families of those entering into a predatory marriage, but it could have unwelcome consequences for the majority of those marrying for a second time; a mistaken understanding of the rules could see the new spouse completely, and unintentionally, dis-inherited. When reviewing the law relating to Wills in 2017, the Law Commission recognised the difficult balancing act that must be carried out when considering whether to abolish this rule. Perhaps the answer lies in greater public education about the rules that apply, whether or not automatic revocation is in force.

Registrars carrying out capacity assessments

There have been suggestions that Registrars who conduct marriages should be made responsible for assessing the legal capacity of each of the couple wishing to marry. Registrars are not, however, experts in mental capacity assessments and are unlikely to become so even with training. They could be trained to make rudimentary assessments referring those about whom they have concerns for a detailed expert assessment. However, those people who do not display obvious signs of incapacity could slip through the net, even if Registrars were prepared to take on this onerous extension to their duties.

Lasting powers of attorney (LPAs)

Although an LPA would not prevent a family being disinherited, it can avoid financial abuse of a vulnerable person in a predatory marriage. A LPA enables the appointed attorney to take over the incapable person’s financial affairs so if this is drawn up in favour of a trusted person before incapacity occurs, the LPA can be used to avoid financial abuse as the attorney can take over the incapable person’s finances. A LPA is a useful tool when the vulnerable person is mentally incapable of managing their finances but will not help when a person is vulnerable due to older age and loneliness but retains mental capacity. If an older person with mental capacity makes what others might regard as unwise decisions about who to marry and how to spend their money that is a matter for them and there is no legal remedy for this situation.

Thinking ahead: trusts in Wills

Some couples making Wills do think ahead to the possibility of re-marriage, a surviving spouse losing mental incapacity and the possibility of care fees. Consequently they include a flexible life interest trust in their respective Wills. This ensures that the appointed trustees control the capital of the first spouse to die providing excellent protection against a predatory future relationship.

Capacity to marry

Capacity is not a one size fits all, one occasion assessment. It is time and task specific depending on the action contemplated. Capacity to litigate, for example, will be harder to satisfy than capacity to decide what activities to undertake on a particular day.

The test that applies when assessing capacity to marry was considered in a recent Court of Protection case which also illustrates that in extreme cases the only solution may be court action. The woman (P) at the centre of the Court of Protection hearing was aged seventy and suffering from vascular dementia. She had significant financial assets. P was in a (platonic) relationship, and controlling relationship, with a man nearly twenty years younger than her who had numerous criminal convictions, including for fraud. P’s family were very concerned about the relationship and applied for an order from the Court of Protection that their mother lacked capacity to decide with whom she should have contact.

Three separate determinations of capacity were made during the proceedings. It was decided that P lacked capacity to deal with her financial affairs and with whom she should have contact. However, it was decided that she did have capacity to marry as this is an easier test to satisfy. An order was made prohibiting contact with P’s partner with a penal notice attached, an injunction against her marrying him was also granted and an order was made for an interim period under the Forced Marriage (Civil Protection) Act 2007.