It's not often I quote Kanye (not after what he did to Taylor Swift) but as predatory marriage cases become increasingly prevalent, it seems appropriate.
It isn’t that predatory marriage hasn’t existed for a long time – it has – but with the increasing number of contentious probate claims, it was almost inevitable that claims arising from predatory marriage would rise as well.
What is predatory marriage?
Predatory marriage is marrying someone who is vulnerable for the purpose of receiving their money on their death. It refers to a forced marriage and usually involves a vulnerable person (we’ll call them ‘A’). In a ‘typical’ case, A is vulnerable, usually elderly but often with complicating factors such as dementia. A often has care needs.
The partner (we’ll call them ‘B’) comes along. Often they will care for A but it may also just be providing them with company. B then convinces A to marry them.
The issue with predatory marriage (other than being obviously awful and manipulative) is that either B will convince A to change their will in favour of B or by the act of marriage, any will previously prepared by A is revoked, leaving B with often the majority of the estate and sometimes all of it.
Is a predatory marriage legal?
You must have capacity to marry. This means, in its simplest terms, that you understand the nature of the marriage contract and have the capacity to enter into sexual relations.
The Anti-Social Behaviour, Crime and Policing Act 2014 (the 2014 Act) made it a criminal offence to marry a person who lacks the mental capacity to consent to the marriage, regardless of any pressure or threats made to them to force them to enter into the marriage.
Therefore anyone who marries a person without capacity to marry may face criminal charges.
However there is nothing in the law surrounding consent to marry that suggests the marriage has to be a good idea. Adults with full capacity are entitled to make bad decisions and a marriage to a particular person being a bad idea alone would likely not be good evidence that A has lost capacity to marry.
A marriage entered into where one of the parties does not have capacity to marry is voidable as a matter of contract law (marriage is, after all, a contract). The difference between void and voidable is crucial here.
The difference between void and voidable contracts
A contract which is void is as if it never happened. It was never valid in the first place. It has no consequence.
A contract which is voidable means that the court has the power to determine that it is to be voided and it comes to an end. However that end comes at the date the declaration is made, not the date the contract was entered into.
Consequences of a voidable marriage
By virtue of the Wills Act, in almost all cases, a marriage will revoke previous wills. If A and B enter into a marriage and the court later deem that A did not have capacity to marriage, the marriage is voided. It is annulled. However if previous wills have been revoked, the declaration that the marriage is void does not act retrospectively to reinstate the will. This would probably leave A intestate which may not:
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Reflect how they would wish their estate to be distributed; and
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Have unintended tax consequences.
What can be done about predatory marriage?
The question of what can be done really depends on:
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Whether A has legal capacity, including capacity to marry and capacity to make a will (the legal tests for these are different so A may have one and not the other); and
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The point at which the marriage is discovered.
Example 1: A does not have capacity to marry and the intention to marry is discovered before the marriage takes place
This is probably the best case scenario. In these circumstances, A’s family could obtain an injunction to prevent the marriage taking place. It is also possible to lodge a caveat against the marriage with the Registry Office, but this would not prevent a religious marriage taking place.
Example 2: A does not have capacity to marry but the marriage is discovered after it has taken place but before A’s death
In this case, A’s family could apply to the court to annul the marriage and set it aside. The marriage is voidable but not void. However any will prepared by A is revoked.
If A does not have capacity to marry, it is unlikely that they have capacity to make a new will. the test for capacity to marry is a much lower standard than capacity to make a new will.
In this case, you would need to take advice. It may be that it would make little difference to A to rely on the intestacy rules. However if it does make a difference, it may be worth considering applying to the Court of Protection for a new will. All of this would need to take place during A’s lifetime.
Example 3: A has capacity to marry
There is very little which can be done here. If A marries and the new spouse inherits under the intestacy rules, there may be some claims which could be made if A’s intended beneficiaries were dependent on them.
If A marries B and then changes their will to favour B, there may be an argument that the will is invalid due to undue influence. However even if the will is set aside, B would likely inherit under the intestacy rules. This might still be better for A’s family, if A has a relatively large estate.
Example 4: A did not have a capacity to marry but the marriage is not discovered until after A’s death
In this case, there is nothing which can be done about the will having been revoked. A’s family can still have the marriage annulled. However that is not retrospective and A and B were still married at the time of A’s death, with A’s previous will having been revoked by the marriage. B would still inherit under the intestacy rules.
A’s family may have claims under the Inheritance (Provision for Family and Dependents) Act 1975, but this would usually require them to have been dependent of A during her lifetime.
What can be done?
The above paints a very unsatisfactory picture and there are many lawyers calling for reform in this area of law, in particular for a statutory change meaning that marriages entered into without capacity are void rather than voidable.
Alternatively the Wills Act could be amended so that marriage no longer automatically revokes previous wills. However that exact proposal was considered and rejected by Parliament within the last decade, so I don’t think we can hold our breath for quick change.
In the meantime, it is important to be aware of the warning signs and risks for predatory marriage which are:
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Vulnerability – vulnerable people, particularly the very elderly, those with care needs, and people with capacity concerns are most likely to be targeted, particularly if they have a large estate
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Isolation – very lonely and isolated people are more likely to be victims of predatory marriage
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New conflict – often one of the warning signs of a predatory marriage is conflict seemingly stirred up by a new (usually younger) “friend”. Vulnerable family members may become convinced that their family don’t care about them, don’t visit them enough, have had ‘too much’ money from them and this may cause conflict which has never previously arisen within the family
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Withdrawing – as with many types of abuse, the abuser may try to further isolate their victim. As A is persuaded that their family does not care for them, they may become increasingly withdrawn, fearful, emotional, and confused. Unfortunately these symptoms are also common with many types of degenerative neurological disorders such a Alzheimer’s and dementia so it may be difficult to know the difference.
If you have concerns about a family member, it is important to check on them frequently and to know who they are spending their time with. If you become concerned, it is often worth:
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Alerting the Registrar, however this only works if you know when and where the marriage is taking place;
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Alert social services / the Local Authority of your concerns; and
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Consider applying to the Court of Protection for a statutory will.
If you have any questions about the matters raised in this article, contact Charlotte Braham by email or on 01494 893529.