08 November 2021
Predatory Marriages – let’s talk wills and nuptial agreements
Women’s Hour on BBC Radio 4 recently hosted a discussion on predatory marriages. As part of the radio segment, BBC Radio 4 interviewed Daphne Franks, a lady who believes, that sadly her mother fell victim to a predatory marriage.
A predatory marriage is whereby an individual sets out to marry an elderly and vulnerable person, who usually lacks the capacity to consent to the marriage, for their financial or other gains. The term originally came from Canada but is now unfortunately a term widely recognised in the UK with the government’s forced marriage unit offering support to 1,355 cases in 2019. Although forced marriage is illegal in the UK, arguably the current law only goes as far as protecting those who may have been coerced into marriage and does not protect the more vulnerable in society such as the elderly, those with dementia or with learning difficulties.
Under English law, marriage automatically revokes any existing Will, meaning that a person automatically becomes entitled to their spouse’s assets and estate, unless their Will is renewed to state otherwise.
In Ms Frank’s case, her mother was an 87-year-old widow living with vascular dementia. In 2011, she was befriended by a man 24 years her junior, and in 2015 unbeknown to her family, they married. It was only after her death in 2019, that her family discovered that unfortunately Joan had not renewed her Will following the marriage, and therefore her assets and estate passed automatically to her new spouse.
Ms Franks believes that her mother lacked the mental capacity to consent to marriage. Unfortunately, practice registrars are not trained to assess capacity and so even though an individual may appear to have the capacity (for example, can answer generic questions relating to their date of birth or address), they may be able to marry, consequently revoking their existing Will and enabling their new spouse to inherit from their estate.
Ms Franks has now initiated a campaign entitled Justice for Joan and Predatory Marriage, with the object being to change English law, making it so that Wills are no longer automatically revoked upon marriage. In addition, a call for the reformation of the current Forced Marriage (Civil Protection) Act 2007 in which predatory marriage is recognised and is a subset of Forced Marriage. Furthermore, through training put in place for Registrars to look out for signs of lack of capacity, and when and what questions to ask of the bride and groom to establish if the marriage is fraudulent.
So, what current legal measures are there to ensure that victims can be protected from the implications of a predatory marriage?
If parties are thinking about getting married, they should review their Wills to make sure it reflects their changing circumstances. A new Will can be carefully made in contemplation of marriage to a particular person, so it is not automatically revoked by the marriage taking place.
If there are doubts over the mental capacity of the person making a Will, they should be advised to obtain a mental capacity report, carried out by a medical professional to ensure they understand the nature of making a Will.
If a person lacks the mental capacity to make a Will then an application for a statutory Will can be made to the court of protection if it is in the person’s best interest.
Assets can be protected prior to marriage with a pre-nuptial agreement, or after marriage via a post-nuptial agreement.
Nuptial agreements are a form of a written contract entered into by a couple prior to or following their marriage, which sets out their respective intentions in relation to their assets, should the marriage break down.
Nuptial agreements usually set out what is considered ‘non matrimonial property, matrimonial property, joint property and separate property. They may also deal with income, such as the future earnings of the parties and interests under trusts. In addition, nuptial agreements may also deal with the financial arrangements for children, and set out their financial provision however, they tend to exclude the financial provision of any future children, which is usually covered by the inclusion of a review clause.
However, although nuptial agreements may offer some aid, nuptial agreements are not binding and cannot override the jurisdiction of the court. In addition, in order for the nuptial agreement to hold any weight and effect, the court must be satisfied that the agreement:
- has been “freely entered into by each party
- the parties have a full appreciation of its implications
- it must be fair to hold the parties to their agreement in the circumstance prevailing
Considering the above, the question is therefore raised as to whether a nuptial agreement may actually assist those who have entered into a marriage with a lack of capacity.