3 March 2020

Do I Do?

By Miranda Marshall, Director, Hayes + Storr.

Getting married is a legal contract. That’s why people need a lawyer to get ‘unmarried’; or, at least, the legal system oversees and regulates divorce.

The legal act with the lowest level of mental capacity necessary is that of marrying. That could explain a lot, ha ha; I hear you say!

The Court of Protection, which is the section of the court system which oversees the affairs of those unable to manage them for themselves, has recently granted permission for a 28-year-old man to marry his fiancée, even though he lacks mental capacity to manage his property and affairs.

The groom, called “P” in the reporting of the case, so as to protect his identity, has had learning difficulties since childhood. The loss of his leg in a road traffic accident resulted in him receiving an injury compensation award of £1,500,000. Adrian Mundell, P’s ‘deputy’ (i.e. the person appointed to manage P’s finances) spent P’s compensation on buying P a home and has invested the rest for P.

Early in 2019 P announced his intention to marry a woman, whom he met three years ago and who now lives with him in his home, along with her two children. One is tempted to ask Caroline Aherne’s question, on the eponymous Mrs Merton chat show, to Debbie McGee: “What was it that first attracted you to the millionaire Paul Daniels?”, but that might be unfair.

Adrian had serious concerns about P’s decision to marry, and especially its financial implications. P had made a Will leaving everything to his parents; but as marriage revokes a Will, P would be intestate and his new wife his primary beneficiary, if P died. Adrian felt he had to take steps and so applied to the Court to prevent the marriage. As a reason he gave P’s privately-expressed indecision about the marriage and the doctor’s assessment that P is easily persuaded, has difficulty saying ‘no’, is very vulnerable and is open to being exploited. Adrian was concerned that P did not understand that if he married, and then divorced, his wife would have a financial claim. Adrian applied to the Court for a declaration that P did not have mental capacity to marry.

The judge did not agree. He noted that P had already been considered to have capacity to make a Will, for which the necessary degree of mental capacity is ‘higher than that needed validly to contract a marriage’. He said that people can have capacity to marry, without needing to understand how divorce financial arrangements work.

The judge said that the amount of P’s compensation had been for his needs alone, and so, if the marriage went ahead and then ended in divorce, the scope of the claim of the wife would “necessarily be extremely limited”. The judge added that there were numerous legal authorities which have emphasised the near-immunity of a personal injury award from a divorce financial claim, and so, the divorcing-wife’s claim would be limited to relieving her serious financial hardship only.

And so, let us hope that they both live happily ever after.

This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek our specific advice.

If you would like further advice on this matter please contact Miranda on 01328 710210. If you require advice on any other legal matter call 01328 863231 or email law@hayes-storr.com.