I recently attended a Vulnerability Conference and heard Daphne Franks telling her story about her wonderful mother Joan, who sadly passed away in March 2016. In short, Daphne’s mother Joan had severe vascular dementia and only when her mother passed away, did Daphne and her family discover that she was in fact married. You can read Daphne’s story in full here and I would encourage you to take the time to read it. Daphne’s story resonated with me, which is what leads me to write this piece. I want to raise awareness about predatory marriage and the need to reform the law in this area.
What is predatory marriage?
Predatory marriage is a phrase that was first coined in Canada and is now being more widely used in England and Wales. A predatory marriage is essentially the practice of one person marrying another for the sole purpose of gaining access to their assets and their Estate. In such situations, there is typically ‘the predator’ and the person they choose to marry for the purposes aforementioned. Usually ‘the predator’ will choose someone who is vulnerable and does not have the capacity to get married, but they will take advantage of that person and led them into it. The marriage usually takes place covertly, to avoid any interference from family members.
How can the marriage take place if one of the parties does not have capacity?
The current guidance is that Registrars should undertake separate interviews with both parties, before the marriage. However, this is only guidance and so often if the interviews are conducted together, ‘the predator’ has the opportunity to interject and conceal that the other person lacks capacity. In addition, Registrars have little to no training in how to assess capacity or general safeguarding.
How can they access their assets and Estate?
In England and Wales, marriage revokes a Will and so unless a Will is put in place after a person gets married, their Estate will fall in accordance with the Rules of Intestacy (see our blog here for more information on the Rules of Intestacy). Under the Rules of Intestacy, a spouse will inherit the first £322,000 of a person’s Estate plus all personal belongings and half of the remainder of the Estate (assuming the deceased has children). As such, in leading a person into marriage, ‘the predator’ has revoked their Will and ensured that they receive a large chunk, if not all of, the Estate. The people taken advantage of usually do not have capacity to get married and sometimes are not even aware that they have gotten married. They most certainly would not understand the implications of this on their Will and the need to put a new Will in place, nor would they usually have the capacity to put a Will in place under the test set out in Banks V Goodfellow.
Can the marriage be annulled?
In Daphne’s case, she only discovered that her mother was married after she had passed away, by which time it was too late for anything to be done, as the marriage cannot be annulled after this point. If both parties to the marriage are still alive, it may be possible to annul the marriage. However, even if the marriage was annulled, the fact that the marriage took place in the first place, has already revoked the Will and the person’s Estate would again fall in accordance with the Rules of Intestacy (expect there is now no surviving spouse). Should this not align with their wishes, it is possible for a Deputy to make an urgent application for the Court of Protection for a Statutory Will.
Is there anything that can be done to prevent Predatory Marriage?
The marriage usually takes place covertly and so often in these cases family members only find out after the loved ones have passed away. However, it is possible to lodge a caveat against a marriage. To do this, you usually need to provide your name and address, along with the details of the two persons whose marriage you object and state your grounds for objection. In terms of predatory marriage specifically, you would usually need to provide a medical assessment from a GP or medical practitioner outlining their concerns in respect of the persons capacity to marry.
How can the law be reformed?
There are a number of ways in which the law needs to be reformed in respect of the elements of predatory marriage. The first being that marriage revokes a Will, especially given that the capacity threshold to enter into a marriage is much lower than the capacity required to put a Will in place. In addition, there needs to be a requirement that Registrars conduct separate pre-marriage interviews and that they are suitably trained to assess capacity and recognise safeguarding issues.
☎️ Call our Wakefield office on 01924 290 029
☎️ Call our Garforth office on 0113 246 4423
☎️ Call our Sherburn in Elmet office on 01977 350 500
☎️ Call our Mapplewell office on 01226 339 009
☎️ Call our Ossett office on 01924 586 466
About the Author
Francesca joined Thornton Jones Solicitors in August 2020 and has worked across various departments as part of her training contract. Having qualified as a solicitor in February 2023, she has now joined our Private Client Team.
In 2018, Francesca completed her history degree and then went on to complete the Law Conversion Course and Legal Practice Course and then trained with us. Francesca gained a lot of experience in the Private Client team during her training contract and worked alongside the Team with a variety of cases. She is now looking forward to building on that knowledge and expertise.
Outside of work, Francesca enjoys cooking and socialising with her friends. She also enjoys travelling and will often be jetting off at the first opportunity!
#Intestacy #Wills #Intestate #MakeAWill #Solicitors #LeedsSolicitors #WakefieldSolicitors #YorkshireSolicitors #Garforth #Wakefield #SherburnInElmet #Ossett #Mapplewell #Leeds ...
The content of this blog post is for information only and does not constitute formal legal advice and should not be relied upon as advice. Thornton Jones Solicitors Limited accepts no liability for any such reliance upon this content. Where the post includes links to external websites, Thornton Jones Solicitors Limited accepts no responsibility for the content of such sites. Any link to a third party website should not be construed as endorsement by Thornton Jones Solicitors Limited of any content, products or services which are outside our direct control.