Mental faculties can change over time. Short of full cognitive decline, this can just be an inability to concentrate on details, a tendency to rely heavily on others or a change in affections.
A “predatory marriage” involves an older person who is vulnerable due to these changes being led into marriage by a (younger) party for financial gain. Although the phrase coined is “predatory marriage” this applies equally to civil partnerships.
Predators will select a vulnerable person with a small or non-existent support network, and then further isolate them. By the time of the marriage, which is usually secretive, the vulnerable person will be convinced it is what they want.
The test for capacity to marry is relatively low. Parties marrying need to understand the broad concept of marriage and the duties that spouses owe to each other, such as fidelity and financial support. Someone can have a low level of cognitive function, and not be able to recognise the financial abuse, but still be able to marry.
Even if someone does lack capacity to marry, the marriage is not automatically void, it is simply voidable, and cannot be voided after death. Because of the isolation, family members often do not know about the marriage until it is too late to stop it or undo it.
How does the predator benefit?
Under English law, when a person marries their Will is automatically revoked (unless their Will has been put in place in contemplation of the specific marriage).
This rule is not widely known. Its effect is made worse by the fact that the test for capacity to write a Will is much higher than to marry. It requires the ‘testator’ to understand the exact nature of the act of making a Will. A person can be able to marry, revoking their Will, but not to make a new Will.
The older, vulnerable person is more likely to die first. This means their estate passes under the laws of intestacy and a significant portion (if not all, depending on the value) passes to the predator-spouse who inherits instead of their family. This will not usually be the intention of the vulnerable person and they probably never even knew it would happen.
Would changing the rule help?
The Law Commission has recently launched a consultation regarding Will making. One question asked is whether the rule that a marriage revokes a Will should be changed.
An argument in favour is to discourage predatory marriages. The rationale is that if the Will survives, the new spouse would not benefit under the intestacy laws, and predators would be dissuaded from entering into predatory marriages.
However, many older and vulnerable people do not have Wills. This change in the law therefore does nothing to protect them.
Even if the previous Will remained in place, the new spouse would have a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act). This allows a surviving spouse who did not receive any / sufficient provision in a Will to bring a claim again against the Estate and just gives predators a different gateway to the assets.
There is also no evidence to suggest predators know about the rule. Predators may simply think the marriage makes it easier to take assets during the vulnerable person’s lifetime. If so, the change makes no difference. Safeguarding at this level could be more appropriate.
Alternative solutions
The solution to predatory marriages needs to be broader than just the revocation or not of a vulnerable person’s Will.
The threshold for capacity to marry could be raised, e.g., to include having to understand the effect that marriage has on financial affairs (e.g., on death or divorce). However, there are public policy reasons against this. Marriage has an important place in society. There are people with low capacity who are entering into supportive and loving marriages; they should not be denied the chance to experience that life event.
If the rules on the level of capacity remained the same, steps could be taken to make it easier for marriages to be invalidated if someone lacked capacity. For example, a mechanism for these to be declared void retrospectively (including after death) could be introduced. This would prevent the new spouse from benefitting under the intestacy rules or having a claim as a spouse under the 1975 Act.
The Law Commissions’ report on reforming wedding law includes useful practical proposals which would assist such as (i) publishing intended marriages online, (ii) each of the couple meeting with the officiant separately in advance, and (iii) allowing concerned parties to lodge a caveat in advance of any marriage.
These steps would protect both those that had a Will before they married, and those that did not, more effectively than just a change in the rule revoking a Will on marriage.