The capacity to marry and the consequences of marriage

family law

The right of men and women of marriageable age to marry is of course enshrined in Article 12 of the European Convention on Human Rights. However, this right is only exercisable according to the national laws governing the exercise of the right. One of those laws is that both parties must have the mental capacity to marry. As we will see in a moment, the test for capacity to marry is not high, but the consequences of marriage can be quite complex. How much detail of those consequences are the parties required to understand? A case that was decided last year, but has only been published in the last few days (at least on Bailii) sheds some light on this question.

The case is Re DMM, which was heard by His Honour Judge Nicholas R. Marston in the Court of Protection in July and October last year. The case concerned a man in his mid-80s, ‘DMM’, who suffers from Alzheimer’s disease. He had previously been married once, that marriage ended in divorce many years ago and he has three adult daughters from it.  He has cohabited with ‘SD’, a lady in her 70s, for some 20 years or more.

In December 2013 DMM executed a will which gave SD two thirds of his pension, a legacy of £300,000 and the right to reside at his property for two years after his death. The remainder of his estate was to be divided between his three daughters.

In November 2016 DMM was taken by SD to have an assessment as to his capacity (inter alia) to marry.  A report by a consultant psychiatrist concluded DMM did have capacity to marry. One of the daughters became aware of the proposed marriage and sought to stop it taking place, obtaining her own expert report which concluded that DMM did not have capacity.

Whether or not DMM married could have considerable financial consequences for both SD and the three daughters. If DMM were to marry then the will would be automatically revoked. It may then be that DMM might not have the capacity to make a new will, in which case his estate would be distributed in accordance with the rules on intestacy, which would result in SD receiving considerably more, and the three daughters receiving considerably less.

The matter went to the court to decide the issue of capacity.

As mentioned earlier, the test for capacity to marry is not high. As Munby J (as he then was) stated in a 2004 case, the contract of marriage was a simple one which did not require a high degree of intelligence to understand. Further, as Judge Marston pointed out, there is also a public policy issue involved: “the test must not be set too high because that would be an unfair, unnecessary and discriminatory bar against those with capacity issues potentially denying them that which all the rest of us enjoy if we choose, a married life.”

But what of the effect of the marriage on the will, and the financial consequences of that? Was DMM also required to understand this? Judge Marston found that, whilst he did not have to know what the situation would be if he died intestate, DMM was required to understand that the marriage would revoke the will, and that therefore what he wanted to happen to his estate when he made the will may not happen.

So, did DMM have this understanding? In a second judgment Judge Marston held that he did. A report from a consultant psychiatrist specialising in old age found that DMM knew the will would be cancelled, that he might not be able to make a new will, that the rules would therefore produce a different result to the old will, and that his children might receive less and SD more.

Accordingly, Judge Marston was satisfied that DMM had the capacity to marry.

The first judgment in Re DMM can be found here, and the second judgment is here.

Photo by J.K. Califf via Flickr under a Creative Commons licence.

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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