Safeguarding vulnerable adults in relation to marriage is becoming increasingly important, says Gillian de Freitas

With ever-increasing complex family dynamics, the need to safeguard incapacitated individuals cannot ?be underestimated.

It may seem distasteful for a party’s marriage to be called into question and often issues arise regarding their own human rights, such as the right to private and family life. However, the need to protect the vulnerable adult may be seen as equally important.

With this in mind, it is imperative, although uncomfortable, for professionals to understand the legal principles and tests to be applied when assessing an individual in respect of their capacity to consent to marry.

Marriage contract

It is essential for the vulnerable adult to understand the nature of the marriage contract, not merely understand or appreciate they are taking part in a marriage ceremony or understand the words spoken at such a ceremony.

As was set out by Lord Justice Singleton in the Estate of Park (deceased), Park v Park [1954] P 112, it is not enough that someone appreciates that they are taking part in a marriage ceremony or understands its words. They must understand the nature of the marriage contract. This means that they must be mentally capable of understanding the duties and responsibilities that are normally attached to marriage.

When assessing a vulnerable adult’s capacity to consent to marriage, the legal framework and general principles outlined in the Mental Capacity Act 2005 (MCA) should be considered. Sections 1 ss(1)-(6), 2, 3 and 4 should be taken into account along with the two-stage test (the diagnostic and functional tests).

The Code also states that the MCA’s new definition of capacity is in line with, and does not replace, the existing common law test.

In KC v City of Westminster Social and Community Services Department (2008) EWCA 198, it was held that a 26-year-old man, with the mental capacity of a three year old, was incapable of entering into a marriage conducted over the telephone by him in England with the other party in Bangladesh.

Failure to give consent in cases where there is unsoundness of ?mind will lead to grounds of nullity ?of the marriage.

Question time

There is nothing in the MCA specifically relating to decisions concerning family relationships that permits a decision to be made in relation to a party consenting to marriage, or consenting to sexual relations. The validity of an individual’s marriage and, in particular, the marriage of an incapacitated/vulnerable adult with mental capacity issues, may be called into question by the parties wishing to object to a Court of Protection (CoP) deputyship application, an application to execute a statutory will and any other matters which may arise regarding the management of the property and affairs and health and welfare of incapacitated/vulnerable adults.

The CoP may make an order or direction relating to the capacity of an individual to determine whether they had the requisite capacity to consent to a marriage. Most CoP deputyship applications and objections to the registration of enduring or lasting powers of attorney instruments are caused by the need to safeguard, not only the incapacitated adults’ interests, but also, at times, the interests of others who will, ultimately, be beneficiaries of the incapacitated persons’ estate.

The capacity to consent to ?marriage can be of importance when determining the validity of existing wills. Where a person marries after making a will, the will is revoked by the marriage.

Other issues to be determined are those of domicile, whether a marriage is forced, matters relating to beneficial ownership of the incapacitated adult’s real estate (such as joint bank accounts), or matters relating to reasonable provisions for parties to whom the incapacitated adult might be expected to financially support.

Common authorities

The common law authorities on capacity to consent to a marriage were considered by Munby J in the case of Sheffield City Council v (1) E and (2) S [2005] Fam 326. The following conclusions were reached:

• the question is not whether a person has capacity to marry X rather than Y, rather whether the person has capacity to marry;

• the question of whether a person has capacity to marry is quite distinct from the question of whether the person is wise to marry;

• in relation to a proposed marriage, the only question for the court is whether the person has capacity ?to marry.

It should also be noted that, given the nature of marriage, capacity to consent to marriage will normally require the capacity to consent to sexual intercourse.

Pracitioners should also review recent common law cases relating to persons with issues of incapacity ability to consent to sexual relations and ?marriage, such as D County Council v LS [2010] EWHC, where Wood J links consent to sex and marriage and reviews Munby’s decisions in X City Council v MB and MAB [2006] and MM v Local Authority X [2007].

Most importantly, Baroness ?Hales’ comments in R v C [2009] (see https://www.publications.parliament.uk/pa/ld200809/ldjudgmt/jd090730/rvc-1.htm) brings in the MCA’s tests of being able to weigh the relevant information about marriage to make the choice to ?marry or not.

Gillian de Freitas is a solicitor at Penningtons