A ‘predatory marriage’ is one where the vulnerability of a person is exploited by someone inducing them to marry. The classic example is an older person with cognitive impairments who is taken advantage of by someone who is much younger than them. The relationship, which may be kept secret, involves exploitation for financial or other gain. Of particular concern when such a marriage takes place is the fact that marriage revokes a will.
After the death of her mother, Joan, in March 2016, Daphne Franks found that a much younger man, aged 68, had secretly married Joan five months previously. Joan was 91 with severe dementia and terminal cancer. Her will, leaving her estate to Daphne and her brother was revoked by her marriage and Joan’s spouse inherited under the intestacy rules.
The problem arises because the threshold for capacity to marry is much lower than that required to make a will. The law assumes that someone has capacity and the burden of proving otherwise rests with the person making the assertion. This is often an adult child who is seen as a troublemaker, trying to preserve their inheritance and resentful of a ‘later life’ step parent. Sadly, grooming by a predator can mean that the victim may not even see themselves as such.
It was held in the 2017 case of EJ v SD that the capacity to marry should include a requirement that a person should be able to “understand, retain, use and weigh information as to the reasonably foreseeable financial consequences of a marriage, including that the marriage would automatically revoke the person’s will”.
Daphne Franks is sure that her mother would have failed this test. But at the moment registrars do not receive any training to identify symptoms of cognitive impairment.
It’s possible for a caveat to be entered at a registry office under Section 29 (1) of the Marriage Act 1949 in order to prevent a marriage taking place. But if the marriage takes place in secret, the victim’s family may not even find out until after their death that they were married. The case of Re Roberts in 1978 held that even if a marriage is annulled after the death of one of the parties because of a lack of capacity to marry, it will still revoke a previous will.
I am campaigning with Daphne for a change in the law so that marriage no longer automatically revokes a will. To that end, Joan’s MP, Fabian Hamilton introduced the Marriage and Civil Partnership Consent Bill under the 10 Minute Rule in Parliament on 21 November 2018.
It must be right that someone is presumed to have capacity to make decisions unless it is proven that they do not. But, it must also be wrong that the burden of preventing a predatory marriage is at the moment effectively put almost entirely on the family of an older person.
Director at Ridley & Hall solicitors
Sarah Young is a Director of Ridley & Hall solicitors, based in Huddersfield and Leeds. She specialises in contentious probate law and has a niche expertise in the law surrounding missing people, which has been recognised in the latest issue of the Legal 500. She works closely with the charity ‘Missing People’ and has long campaigned for legislation to be improved in this area.
Sarah represented the claimant in the much reported 2014 Inheritance Act case of Wright v Waters. In February 2019 she acted for a successful claimant, Lynsey Delaforte, in her Inheritance Act claim against her late grandmother’s estate which was also widely commented on in the media and is a significant case in this area of law.
Sarah feels strongly about financial abuse of the elderly. She has written a number of articles on this issue and is currently campaigning for a change in the law to prevent predatory marriage.
She is a member of the Association of Contentious Trust And Probate Specialists and Solicitors for the Elderly.
From 2006 to 2011 she acted as the firm’s Managing Partner and won the Association of Women Solicitors (AWS) Award for Managing a Small Practice in September 2009. The AWS has over 18,000 members. She was then one of 5 women solicitors shortlisted in the AWS Legal Business Woman of the Year category at the prestigious Law Society Excellence Awards. Sarah was also a finalist in the Women in Business Awards 2015 (Yorkshire and North East) in the “Inspiring Leader” category.”