Predatory marriage — what is it?

Predatory marriage involves one person, ‘the predator’, inducing their victim into marriage. The purpose of the marriage is to allow the predator access to the victim’s finances, both in life and in death.

A common scenario is where an elderly person is befriended by a younger party and that party gradually infiltrates every aspect of the victim’s life, isolating the victim from friends and family so that they become wholly reliant on the predator to fulfil their needs of daily living, care needs, shopping and financial transactions. The victim is essentially ‘groomed’ by the predator and may come to believe that it is only the predator who has their best interests at heart, with the rest of their family being motivated by greed and ultimate inheritance only. In fact, it is the other way around.

Effect of marriage on a will

By virtue of the Wills Act 1837 s.18(1), marriage automatically revokes any existing valid will made by either party to the marriage, unless the will was made in contemplation of the specific marriage.

Capacity issues

A common feature of predatory marriage is that the victim may have questionable or borderline mental capacity. This makes the victim particularly vulnerable. The tests for the capacity to marry and the capacity to make a new will are different.

The test for capacity to make decisions is found in s.2 of the Mental Capacity Act 2005, which says that a person lacks capacity in relation to a matter if, at the material time, “he is unable to make a decision for himself in relation to a matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.”

Capacity to marry

Specific guidance on the capacity to marry largely comes from case law decided prior to the Mental Capacity Act. The threshold was purposely set quite low (Sheffield City Council v E and another [2004]). In this judgment, the court decided that it ought to be concerned with a person’s capacity to marry generally, which requires an understanding of the marriage contract and the responsibilities that come with it. It also requires a person to have capacity to engage in sexual relations, as this is usually a feature of marriage. The court has not, however, been historically concerned with the wisdom of a person’s choice of spouse.

In DMM, Re (Alzheimer’s: marriage: power of attorney) [2017], the Court of Protection looked again at the issue of capacity to marry, finding that the fact that “marriage revokes the will is information that a person should be able to understand, retain, use and weigh to have capacity to marry”, demonstrating that capacity to marry should be assessed in line with the principles of the Mental Capacity Act as opposed to being a distinct test.

Capacity to make a will

The test to make a new will is found in the case of Banks v Goodfellow (1870). The test still stands today. It requires a person to:

1. Be able to understand the nature of the act of making a will, which is to say that they understand that they are making a document that will dispose of their estate on death;
2. Have a general understanding of the assets of which they are disposing in their will;
3. Be able to identify and comprehend those who might be the natural recipients of their estate;
4. Be free from any disorder or delusion of the mind which could poison their affections against a person who would otherwise benefit under their will.

As such, it will often be the case that, once married, the existing will of the victim is revoked and they are unable to make a new will, (even if they wanted to), because of a lack of capacity within the meaning of the Banks v Goodfellow test. This means that, on their death, the victim’s estate will be distributed in accordance with the rules of intestacy which currently stipulate that, in cases where the victim has children from an earlier marriage, the surviving spouse receives the first £322,000 of the estate and half of the remainder. The other half of the remainder is shared equally between the deceased’s children. The surviving spouse is also entitled to the deceased’s personal possessions which may be especially upsetting for family members. It is also likely that the spouse will have control over the funeral arrangements.

What can be done?

Before marriage

The nature of predatory marriage means that, very often, the victim’s family does not learn of the marriage until after the event. However, if a family should learn of a prospective marriage, they can consider the following options:

1. Enter a caveat with the Registrar under s.29 of the Marriage Act 1949. Once issued, a marriage cannot proceed until the Registrar has considered the issue and is satisfied that the marriage should not be obstructed.
2. Apply for an injunction preventing the marriage. In cases where the person vulnerable to predatory marriage has capacity, the application will be made in the High Court. Where the person lacks capacity, the Court of Protection is the appropriate place to seek an injunction.
3. An application for a Forced Marriage Protection Order within the jurisdiction of the Family Court may also be appropriate.

After marriage

Where family members only learn of the existence of a predatory marriage after it has taken place, the following options should be considered:

1. An application under the Matrimonial Causes Act 1973 s.12 by the person who is married, brought by a Litigation Friend if they lack capacity. This provides that a marriage is voidable on a number of grounds, including where either party to the marriage did not validly consent to it, whether as a consequence of duress, mistake, unsoundness of mind or otherwise.
   
   A marriage which is voidable is a valid marriage until such time as it is rendered null and void by an order of the court. This means that the revocation of any will in place at the time the marriage took place will still be effective, and the deceased, if lacking the relevant capacity, will not be able to make a new will.
   
   However on dissolving a voidable marriage, both parties are entitled to a financial settlement. How that will be resolved is a matter for the court in exercising it’s discretion. Depending on the circumstances of the predatory marriage, it may amount to ‘conduct’ which the court factors into the terms of any settlement awarded to the predator, resulting in a limited or even no settlement. Expert advice should be sought to discuss possible outcomes.
   
   
2. Where the vulnerable adult lacks capacity, the Court of Protection may make an order for a Statutory Will to effectively be made on appropriate terms for them. The Court of Protection will need to be convinced that it is not in the best interests of the vulnerable adult to die intestate. It is not focussed on the best interests of the proposed beneficiaries.
   
   
3. On the death of the vulnerable adult, in appropriate circumstances, it may be possible for children to make a claim for financial provision against the estate of their late parent, but any claim will be limited to their maintenance needs.

Possible reform

The issue of predatory marriage has had a lot of press attention over recent months, and is the focus of a Law Commission review which is looking at the automatic revocation of a will on marriage and whether that rule should continue to operate. The major benefit of abolishing s.18 of the Wills Act 1837 is that the will of any victim of a predatory marriage would be unaffected by the marriage. A marriage taking place towards the end of a person’s life in unsuspicious circumstances, when a person perhaps lacked capacity to make a new will but wished to marry their partner of many years, that partner would have recourse to a financial provision claim under the Inheritance (Provision for Family and Dependants) Act 1975. Any claim made by a spouse is not limited to financial maintenance needs and will be assessed on what provision is reasonable in the circumstances.

Abolishing the revocation rule would also not provide for a situation in which the victim had not made a will at the time of the marriage. In those circumstances, the predator would still receive the bulk of the estate on death under the intestacy rules, and family members might still be left with having to explore some of the options discussed above, such as a Statutory Will application in the victim’s lifetime or a financial provision application after death.

The Law Commission is currently considering responses received during the consultation period on reform to s.18 of the Wills Act and is due to publish final recommendations in early 2025. In the meantime, families will need to grapple with the existing framework whilst being alive to those options available where they fear a loved one is either susceptible to, or already in, a predatory marriage.