What is predatory marriage?
If someone has coerced another person into marriage, intending to inherit their estate, this is called a predatory marriage.
With an ageing population and many older adults feeling isolated and lonely, the problem of predatory marriage seems to be on the rise.
Why does predatory marriage happen?
Care-workers marrying their elderly patients is one example, but a predatory marriage can take many forms. Those with brain injuries or learning difficulties are also vulnerable to this type of manipulation. Any unscrupulous individual might consider marriage to gain access to a vulnerable person's estate.
Coercive relationships are often kept secret from the vulnerable person's family, who may not know the marriage has taken place until after the event or after their death.
Marrying for money is not a new concept. In the Regency era, having children was a primary reason to marry - either for male heirs to continue the family name or to contribute to family income and support later in life.
Exploiting vulnerable people, however, is abhorrent in all cases. Predatory marriage can have an even more devastating financial consequence. Under English law, marriage automatically revokes (cancels) any previous Will (section 18 of the Wills Act 1837). If a new Will is not validly signed and witnessed after marriage, the intestacy rules will decide who inherits.
What are the intestacy rules?
When the vulnerable person dies, their children may not inherit anything. The predatory husband, wife or civil partner keeps all the assets (including property), up to £270,000, and all the personal possessions. The remainder of the estate will be shared - the husband, wife or civil partner takes an absolute interest in half of the rest, and the other half is divided equally between the surviving children. If the vulnerable person had a son or daughter who had already died, leaving children of their own, those grandchildren would inherit in their parent's place.
The law is the same if the marriage took place shortly before the coerced person died. The length of the marriage is not relevant.
Can predatory marriage be prevented?
The law is not a great help to those who lack capacity or are unfairly influenced and fall victim to a predator.
The Matrimonial Causes Act 1973 states that a marriage is not automatically void because one party lacked mental capacity or had been unduly influenced into entering the marriage by the other. Instead, the marriage is 'voidable'.
A void marriage does not comply with the legal requirements for a valid marriage and is effectively cancelled. A 'voidable' marriage is valid but can be annulled if one of the spouses makes an application.
A court must consider if the marriage should be set aside because of coercion and lack of free will– but even if this happens, the previous Will remains revoked.
Once the vulnerable person has died, their marriage can no longer be set aside for any reason, however predatory it may have been.
Predators will often marry their victim in secret, sometimes even in a different country, to avoid family members and friends from taking action to prevent it.
One reason for the increase in predatory marriages may be insufficient safeguards. Capacity to marry has a lower threshold than that required to make a Will.
What is the test for capacity to marry?
The Mental Capacity Act 2005 begins with a presumption that a person has capacity. The burden of proving otherwise rests with the person declaring that they do not.
The legal test for capacity to marry is defined by London Borough of Southwark v KA [2016] (EWHC 661 (Fam)):
It is status specific rather than person specific
Wisdom of the marriage is irrelevant
P must understand the broad nature of the marriage contract
P must understand the duties and responsibilities that normally attach to marriage, including financial consequences, status and connection of spouses
The essence is to live together and to love one another
P must not lack capacity to enter into sexual relations
The married couple doesn't need to live together for their marriage to be legally valid. The absence of a romantic relationship is a risk factor for a potentially predatory relationship but is not part of the test for capacity to marry.
What is the test for capacity to make a Will?
The capacity to make a Will is assessed using a test set out in Banks v Goodfellow [1870] (LR 5 QB 549). The person making a Will must be able to:
understand the nature of making a Will and its' effects
understand the extent of the property of which they are disposing in accordance with the Will
comprehend and appreciate the claims to which they ought to give effect, i.e., the persons whom they might be expected to benefit; and
in relation to the above, have no disorder of the mind that might pervert their sense of right or prevent the exercise of their natural faculties in disposing of their property by Will.
What is the golden rule?
The capacity threshold to make a Will is higher than the capacity to marry. There is also an obligation on legal professionals, called the 'golden rule', to obtain a medical opinion on testamentary capacity if there are any doubts that the Banks v Goodfellow test is not satisfied. The same requirement does not apply to marriage.
MP Fabian Hamilton proposed the Marriage and Civil Partnership Consent Bill in 2018. The Government considered these reforms:
Marriage would no longer revoke Wills (essentially revoking section 18 of the Wills Act 1837).
Better training for marriage registrars to identify vulnerable individuals.
Marriage questionnaires to alert the registrar to any potential capacity issues.
Public notices of intentions to marry, to provide opportunities for intervention.
No further action has been taken, and momentum has stalled on these reforms.
The UK is experiencing a rapidly growing ageing population, with around 12 million people now over 65. As an ageing population, we're more likely to suffer from multiple long term health conditions that, mean care and assistance is more likely to be needed. We may become more dependent on family, friends, neighbours, and carers. In most cases, those relationships are built on kindness and good intentions. However, predatory marriage is on the increase.
Joan Blass was 91 and had dementia when she married a man 23 years her junior. She died five months later, and her husband inherited her estate. You can read her family’s story here: https://www.predatorymarriage.uk.
If you suspect a vulnerable person is being coerced or manipulated, or if your family have been affected by a predatory marriage, please reach out to us. We will put you in touch with a trusted professional who specialises in this area of the law.
