Predatory marriage: what is it and what you can do

Posted: 04/03/2022

A predatory marriage can be both emotionally and financially damaging to both the victim and their family. While work to create a new Bill to prevent such cases continues, the current situation can leave people powerless. In this article, we explore the current situation and the measures that can be taken to prevent such predatory marriages taking place.

What is meant by predatory marriage?

A predatory marriage typically involves a situation where one person does not have the required mental capacity to consent to marriage but is led into it, and taken advantage of, by the other party to secure financial or other gains.[1] ‘Predators’ can take advantage of the fact that entering into a marriage will revoke any will that has formerly been put in place. This means that, when the vulnerable individual dies, the predator benefits from their estate.

Unfortunately, predatory marriage is on the rise, in part due to an increasingly ageing population and an upsurge in dementia. Campaigners who have investigated predatory marriage have noticed patterns of behaviours that can be defined as “grooming” – the predatory spouse looks to alienate the victim from their family and friends and most of the marriages take place in secrecy.

Justice for Joan

A campaign known as Predatory Marriage UK (originally known as Justice for Joan) was started following a case involving an elderly lady, Joan Blass.[2] The campaign is seeking to change the laws and procedures around marriage to better safeguard vulnerable individuals like Joan.

Joan was 91 and suffering from severe vascular dementia, diagnosed in 2011, as well as terminal cancer. It was after Joan died in 2016 that her daughter, Daphne Franks, discovered that her mother had been married the previous year. Joan did not realise she had been married and often asked why this man was living in her home. As a result of Joan’s marriage, her will dated 2004 (which left everything to her daughter and son) was revoked and her new husband inherited the estate under the laws of intestacy.

Daphne got in touch with her local MP, Fabien Hamilton, who was shocked by the story and that gaps in the law and safeguarding policies allowed the marriage to happen. He addressed the case and introduced a Private Member’s Bill, Marriage and Civil Partnership Consent Bill in Parliament in November 2018.[3] The purpose was to stop marriage automatically revoking previous wills and introduce protections against predatory marriage. The bill was passed unanimously but ran out of parliamentary time. However, work is continuing to try to effect change.

The current law

As it stands, marriage will revoke a will. Therefore, unless an individual makes a further will, the law of intestacy decides how that individual’s assets will be divided.

The rules apply in the following way:

• If the deceased dies leaving an estate less than £270,000, the entire estate will pass to the surviving spouse
• If the deceased dies leaving an estate worth more than £270,000, the surviving spouse will receive:
  • all personal property belonging to the deceased;
  • the first £270,000 of the estate; and
  • half of the remainder of the estate – if the deceased has surviving children.

If the deceased has no surviving children, the entire estate will pass to the surviving spouse.

In addition to receiving financial gains from the estate, the ‘predator’ is also entitled to be appointed as the individual’s personal Representative. The predator is then not only able to control the administration of an individual’s estate but, more concerningly, the individual’s funeral.

The laws in place provide married couples with rights to protection upon their spouse’s death. Predators take advantage of these laws through predatory marriage.

Forced marriage

Legislation is in place that criminalises “forced marriages”. A forced marriage is when an individual faces physical pressure to marry (for example threats, physical violence, sexual violence) or emotional and psychological pressure.[4]

The Anti-Social Behaviour, Crime and Policing Act 2014 (the 2014 Act) created the criminal offence of forced marriage.[5] The 2014 Act has made it a criminal offence to marry a person who lacks the mental capacity to consent to the marriage, regardless of any pressure.[6]

Under sectionc121 of the 2014 Act, a person commits an offence if they:

• use violence, threats or any other form of coercion for the purpose of causing another person to enter into a marriage; and
• believes, or ought reasonably to believe, that the conduct may cause the other person to enter into the marriage without free and full consent.

A person commits such offence specifically under the law of England and Wales if he or she:

• practises any form of deception with the intention of causing another person to leave the United Kingdom; and
• intends the other person to be subjected to conduct outside the United Kingdom that is an offence under subsection (1) or would be an offence under that subsection if the victim were in England or Wales.

The 2014 Act defines the terms referred to including “coercion” which broadly includes “violence, threats and other forms of coercion”. “Marriage” is defined as “any religious or civil ceremony of marriage” regardless of whether it is legally binding.

If one party is deemed not to have the necessary mental capacity, the marriage is “voidable” and can be annulled. However, the marriage is legally valid until annulled, as opposed to being void from the moment it was entered to. Therefore, whilst the predator may subsequently be found to have committed a legal offence, the will will still have been revoked when the marriage took place.

The key offence of forced marriage carries a maximum of seven years if tried on indictment. Between 2014 and 2019 there were only four convictions. This rate is very low, especially as there were 1,196 cases reported in 2017 alone. However, despite the legislation in place, it is very challenging to find sufficient evidence for the Crown Prosecution Service to charge.[7] To date, there has been no conviction for predatory marriage.

The law on capacity

The Mental Capacity Act 2005 defines “capacity” as adopted by the 2014 Act.[8] Mental capacity is presumed to be present unless proven otherwise, even where a decision is considered an unwise one.

The threshold for capacity to marry is relatively low. In London Borough of Southwark v KA [2016] EWCOP 20, it was held that an individual need only demonstrate a “rudimentary”’ understanding of the financial consequences of marriage. Yet in re DMM [2017] EWCOP 32[9] it was held that a person should be able to “understand, retain, use and weigh” the specific fact that marriage revokes a will.[10] In the case of DMM the daughter was able to get an injunction against the marriage, having taken independent legal advice, but this is clearly not possible when the family is not aware of the marriage before death.

Further, even though marriage revokes a will, the level of capacity to marry is lower than that of testamentary capacity. The test for testamentary capacity was outlined in Banks v Goodfellow (1870) LR 5 QB 549. In short, a testator must:

• understand the nature of making the will and its effects;
• understand the extent of the property of which they are disposing in the will;
• be able to understand and appreciate any claims against their estate; and
• have no mental disorder that poisons their affections or prevents them from exercising their natural faculties and that influences them to execute a will that they would not have executed without that disorder.

It is arguable that as marriage has the effect of revoking a will, it is in itself a testamentary disposition. It should therefore be subject to the same test of capacity as for making a will, namely the Banks v Goodfellow test.

Safeguards against predatory marriage

There are greater safeguards in place to protect vulnerable testators when attempting to make a new will. For example, where an individual’s testamentary capacity is in question, solicitors are advised to organise a capacity assessment prior to the execution of any will to ensure that the individual has testamentary capacity. These capacity assessments are conducted by independent medical practitioners, who are medically trained to assess testamentary capacity.

There are fewer safeguards in place to protect vulnerable individuals prior to marriage. Prior to marrying, registrar guidance outlines that couples should be interviewed separately upon notification of marriage.[11] It is during these interviews that marriage registrars alone are tasked with assessing both parties’ consent to the marriage.

As it stands, there is no requirement to check medical records at marriage. The 2005 Mental Capacity Act requires those assessing capacity to assume they have mental capacity unless proved otherwise.[12]

Whilst registrars are well trained to notice signs of forced and sham marriages, they are not medically trained to assess capacity. There are also no specific questions that a registrar must ask to assess mental capacity.[13] In addition, registrars are under no obligation to check whether an individual has any health conditions that may affect their capacity, such as dementia, or whether there is a Power of Attorney in place.[14]

A marriage registrar recently commented that assessing capacity “is about chatting to the person and getting a general feeling as to whether they have the capacity to get married”. She further commented that registrars are not very well guided on the issue of capacity and predatory marriage.[15] She has herself prevented a marriage from going ahead due to concerns over an elderly man’s capacity.

However, even where concerns are raised over an individual’s capacity, these are not documented as no records are kept of the pre-marriage interviews or marriage ceremony. As a result, it is extremely challenging for the Crown Prosecution Service to prosecute predatory marriage due to insufficient evidence.[16]

What can be done to stop, or reverse, a predatory marriage?

At present, the law provides very little recourse to reverse a predatory marriage once the victim has died. There is no legal route to annul a marriage following death, unless it is bigamous or incestuous.[17] Further, it is very challenging to prosecute predatory marriage in criminal law and a lack of protection in the civil law leaves vulnerable people open to abuse. Following death, the only option available to families to reclaim some of their inheritance is by making a claim under the Inheritance Provision for Family and Dependents Act 1975.

There are, however, actions that can be taken to stop the marriage, or should the victim still be alive.

Alert the marriage registrar

It is possible to alert a marriage registrar to potential predatory marriage before it takes place. However, this is only possible if it is known where and when the wedding is taking place.

There are two major factors that make this extremely challenging:

• predatory marriages often take place in secret; and
• notices of couples planning to marry are not easily accessible; for example, Westminster Registry office holds the notices in a folder behind the reception desk.

If there are concerns about a potential predatory marriage, it would be worthwhile alerting all local registry offices in an attempt to prevent any marriage.

Report concerns to social services or your local authority

Any concerns about a vulnerable individual being abused by a new friend should be reported to social services for further investigation immediately.

In some instances, the predator occupies a loved one’s property, posing as a “carer”. If concerns arise about a new lodger in a vulnerable person’s property, this should be reported to the local authority immediately. BBC Radio 4 reported on one instance where the local authority was successful in removing an individual from an elderly lady’s property.

One possible route is to apply to the court for a Forced Marriage Protection Order (section 63A Family Law Act 1996) on the grounds of incapacity. The court has discretion to halt any wedding arrangements if it finds that the individual does not have capacity to marry.[18]

During injunction proceedings, the Court of Protection (COP) will be asked to make a judgment on the individual’s capacity. It is therefore best to apply to the COP for this decision concurrently.

Apply to the Court of Protection for a statutory will

Under section 18(1)(i) of the Mental Capacity Act 2005, the COP has the power execute a will on behalf of individuals who lack the capacity to make a will themselves. Statutory wills are executed most commonly when:

• an individual has never executed a will; or
• if there has been a significant change in circumstances to the extent that a testator would be expected to review their arrangements (i.e., marriage or death of a beneficiary).

The individual must be over 18 years old and be domiciled in England or Wales (unless the statutory will is to relate to immoveable property situated in England or Wales). Any decision as to whether to implement a statutory will, or regarding its provisions, will be made in the vulnerable individual’s best interests.

This process involves completing an application to the COP with supporting evidence. The COP will then decide whether to execute a will, based on all the evidence provided, at a hearing. It is best to start this process as soon as possible as an urgent application.

Proposed reforms

Owing to an ageing population and consequential rise in dementia diagnoses, it is likely that cases of predatory marriage will increase. Reforms currently being considered fall into two categories.

Legal reforms

To prevent any further cases of predatory marriage, the following key legal reforms have been proposed:

• Repeal section 18 of the Wills Act 1937 so that marriage does not automatically revoke a will. Or, in the alternative, alter the application of section18 so that it does not apply where an individual has capacity to marry but not capacity to make a new will.
• Amend section 11 of the Matrimonial Causes Act 1973 to render a marriage as void where one party does not have capacity.

Practical reforms

There are many ways the process of marriage could be improved to provide sufficient safeguards against predatory marriage. For example:

• Publish marriage notices and banns online for public access
• Improve a registrar’s ability to safeguard by:
  • implementing training on how to recognise predatory marriage;
  • requiring registrars to hold separate interviews with individuals (as opposed to merely guidance);
  • requiring a registrar to hold separate interviews and provide set questions to assist in the assessment of capacity;
  • requiring registrars to take a comprehensive note of any interviews as well as the marriage ceremony, perhaps suggesting that these are video recorded;
  • advising that, where concerns of capacity arise, the couple is directed to obtain a capacity assessment from a medical practitioner; or
  • allowing registrars to access medical records that relate to capacity issues, as well as review whether any Power of Attorneys are in place, so that relatives can be notified prior to any marriage.

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[1] The Guardian view on predatory marriage: new safeguards are needed | Editorial | The Guardian

[2] Predatory Marriage UK – Reforming marriage laws and procedures to protect people with dementia

[3] Marriage and Civil Partnership (Consent) - Hansard - UK Parliament

[4] Forced marriage - GOV.UK (www.gov.uk)

[5] Anti-social Behaviour, Crime and Policing Act 2014 (legislation.gov.uk)

[6] Forced Marriage and the Law (bestcriminaldefencebarrister.co.uk)

[7] https://www.bestcriminaldefencebarrister.co.uk/criminal-defence-barrister-blog/2020/forced-marriage-and-the-law

[8] Mental Capacity Act 2005 (legislation.gov.uk)

[9] Re DMM [2017] EWCOP 32

[10] The rise of ‘predatory marriages’ (familylaw.co.uk)

[11] Campaigners for change in this area have noted that sometimes these interviews do not take place and, where they do, they are often not the full 45-minutes.

[12] Mental Capacity Act 2005 (legislation.gov.uk)

[13] File on 4

[14] https://www.predatorymarriage.uk/?page_id=37

[15] File on 4

[16] https://www.predatorymarriage.uk/?page_id=37; https://www.bestcriminaldefencebarrister.co.uk/criminal-defence-barrister-blog/2020/forced-marriage-and-the-law/

[17] https://www.predatorymarriage.uk/?page_id=37

[18] Re DMM [2017] EWCOP 32

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