PM faces calls to end ‘predatory marriage’

Labour MP Fabian Hamilton has once again drawn attention to the issue of ‘predatory marriage’ in the UK, following a failed Private Members Bill in 2018. At Prime Minister’s Questions on 9 June 2021, he described these types of marriages as a “cruel exploitation”, and called for an update to the “19th century” marriage legislation that currently allows them.

What is a predatory marriage?
A predatory marriage occurs when a vulnerable person lacking the capacity to make decisions about their finances and personal affairs is coerced into marrying, with the predator seeking to benefit financially. Mr Hamilton says that, since raising the issue several years ago, he has been contacted by hundreds of families who have suffered the distressing consequences.

Under current English law, getting married revokes any previous Wills a person may have held, with their new spouse automatically standing to inherit under intestacy law unless a new Will is made.

The sole exception to this is Wills made ‘in contemplation of marriage’, which effectively inserts a clause into the Will stating that it should not be revoked upon marriage.

This is unfortunately unlikely to happen with predatory marriages, however, as the vulnerable person is likely to lack the capacity to understand such a clause and may even be judged to lack the capacity to make a Will at all.

As it currently stands, intestacy law affords spouses the right to inherit the first £270,000 of the deceased’s estate, in addition to their personal belongings (which may have significant sentimental value and so cause particular distress for families). Often, a predatory marriage will only come to light on death, as the vulnerable person may be in a coercive relationship with the predator or even unaware the ceremony has taken place.

How is capacity to marry assessed?
Although there is an official legal test for the capacity to marry, case law suggests the threshold is actually quite low. For example, only a “rudimentary” understanding of the financial implications of marriage was judged to be required in a 2016 case (London Borough of Southwark v KA [2016] EWCOP 20).

Having said this, the judge presiding over a similar 2017 case (DMM (Alzheimer’s: power of attorney) [2017] EXCOP 32) appeared to impose more stringent requirements, these being that he must “be able to understand, retain and weigh information as to the reasonably foreseeable financial consequences of a marriage, including that the marriage will automatically revoke [his] Will.”

The issue with the current system for assessing capacity for marriage is that those charged with doing so (i.e. marriage registrars to whom you give notice of your intention to marry) have no legal training in assessing capacity and can be up against highly determined and manipulative marriage predators.

Some have even been reported to have made multiple attempts with different registrars until they find one willing to let the marriage go ahead.

What could a change in the law mean?
Mr Hamilton’s 2018 Marriage and Civil Partnership (Consent) Bill, which did not at the time proceed further than the first reading, made several suggestions for tightening the laws that currently facilitate predatory marriages. It proposed that:

  • Getting married should not revoke a Will in every case – or indeed, in any case
  • There should be a more detailed assessment of mental capacity prior to marriage
  • Notices of intention to marry should be made publicly available on the Internet.

What next?
Mr Johnson listened to Mr Hamilton’s concerns on 9 June and thanked him for highlighting the ‘injustice’ these families have suffered. He stated he would secure a meeting between Mr Hamilton and the justice department as soon as possible.

With a great deal of popular support behind a change of law by those who have suffered the devastating impact of predatory marriage, we will certainly be watching for developments in the coming weeks and months.

It will be interesting to see whether any new legislation will address the ‘Catch-22’ situation whereby vulnerable people are judged to have capacity to marry, but then are prevented from making a new Will due to the higher stringency of capacity tests.

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