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The capacity to enter into marriage

It’s something that most of us take for granted: of course, we can choose whether or not to get married. To be unable to make one of the most important decisions in life is unthinkable.

But for some, it is not so straightforward.

Take, for example, the recent Court of Protection case Mundell v Name 1. It concerned a 28-year-old man who was engaged to be married. In fact, he was due to marry just three days after the case was heard by Mr Justice Mostyn.

Learning difficulties

The background to the case was that the man has suffered from learning difficulties since childhood, as a result of which he is incapable of managing his property and affairs. Accordingly, in November 2014 the Court of Protection appointed a Deputy for Property and Affairs for him.

The man was awarded substantial damages, after losing his leg in a road traffic accident. That award was carefully calculated to meet his needs and his needs alone. Part of it was used to buy a home (in which the fiancée also now lives), and the remainder has been invested on his behalf. His overall estate is said to be around £1,500,000.

The man does have the capacity to make a will, and he did so in October 2017. The will left his estate to his parents, and he specifically indicated he did not want his fiancée to benefit. The will would, of course, be revoked by his marriage (although, as Mr Justice Mostyn pointed out, the man could, before the marriage, execute a codicil to the will which provided that the will would survive the marriage and be effective thereafter).

The man and his fiancée became engaged earlier this year, and as long ago as March the Register Office (NOT ‘registry office’, as stated in the judgment) was booked for the 21st of September. Clearly concerned about the possible implications for the man’s estate, his Deputy raised a question with the Court as to the man’s capacity to marry.

As indicated, that issue fell to be determined by Mr Justice Mostyn.

He went through the law on the capacity to marry, including an interesting discussion upon what exactly it means to be married in 2019 (see paragraphs 9 to 17 of the judgment).

He then looked at the evidence, including the man’s (apparently somewhat equivocal) views on the marriage, the fiancée’s position, the Deputy’s concerns, and expert evidence from a specialist neurological occupational therapist and a clinical neuropsychologist, who found the man to be “very vulnerable” and “open to being exploited”, and opined that he lacked the capacity to marry.

The man, however, had written a letter to the court. Here is an extract:

“I am here to get a positive outcome in allowing me to marry my fiancée of two years … Marrying [her] means everything to me. It is showing everyone that we are committing our love to one another and being able to settle down as a family. Marriage is about love and commitment and being a family, being there to support each other in everyday life, making a commitment legally and also having a long lasting relationship for many more years.”


So to the decision. Mr Justice Mostyn found that the level of understanding of the implications of marriage in order to satisfy the test for capacity was ‘rudimentary’, and did not include the wisdom of the marriage. Further, the fact that he might lack litigation capacity in respect of financial remedy litigation did not mean that the man lacked the capacity to marry.

In his judgment, he said, “it would be inappropriate and, indeed, arguably dangerous to introduce into the test for capacity to marry a requirement that there should be anything more than a knowledge that divorce may bring about a financial claim.” This, the man plainly understood. He then said this, which brought a smile to my face and, I suspect, would do the same for many family lawyers:

“However, what the extent of that claim should be is a mystery to even the most sophisticated and well educated of lay, as well as legal, persons and to suggest that there is needed an appreciation of what the result of a financial remedy claim might be, would be to set the test for capacity far too high.”

He concluded:

“In my judgment, [the man] has the necessary appreciation of the financial ramifications of a breakdown of marriage, were he to contract one next Saturday. I am not satisfied that the evidence placed before me, as developed by the oral evidence from the witness box, comes close to giving me reason to believe that [the man] does not have the capacity to enter into marriage on Saturday. The application is therefore dismissed.”

But he did then say this:

“…if this marriage happens and then later breaks down and a financial claim is made, then the scope of any claim by [the fiancée] is necessarily going to be extremely limited, given that the entirety of [the man’s] means derive from a personal injury compensation payment which will have been calibrated by reference to his needs. There are numerous authorities in the books which have effectively emphasised the near-immunity of personal injury awards from a financial claim. So, the extent of any claim that were to be made on the breakdown of this marriage, were it to happen, would be limited, in my provisional prognostication at this point, to alleviating serious financial hardship and no more.”

The full report of the judgment can be found here.

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John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers, with his content now supporting our divorce lawyers and child custody lawyers

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