Member Article

The concept of ‘predatory marriage’ may be unfamiliar to many, but the harm caused by predatory marriage can have serious and permanent testamentary effects. The term is generally applied to forced marriages faced by individuals (usually elderly) whose mental capacity is in doubt or who are vulnerable to undue influence. The estates of these same individuals are often subject to a probate claim after they have passed away.

As a previous insight article explains, the problem with predatory marriage is that, as things stand, a scheming partner can engineer a solution that by-passes any possible dispute about a will, giving them the entire estate with no legal redress for disappointed beneficiaries or concerned family members.

In 2018, Labour MP Fabian Hamilton introduced a private members bill (the Marriage and Civil Partnership (Consent) Bill) because the case of his constituent, 91-year-old Joan Blass who suffered from vascular dementia, made it clear that the laws protecting individuals from forced marriage were not fit for purpose.  Brexit and Covid-19 meant the Bill was kicked into the parliamentary long grass. Fabian Hamilton raised the issue again at Prime Ministers Questions on 09 June 2021.

Joan’s story

Joan Blass had secretly married a man she barely knew called Colman Folan a year before her death. Joan’s family only learned of this secret marriage after she died. Joan had made a will some years earlier, but her daughter, Daphne Franks, discovered to her surprise and shock that a marriage automatically revokes a previous will. Folan now had complete control over Joan's estate, in spite of the fact that Daphne previously had Power of Attorney on behalf of her mother during her lifetime. There was clear evidence that Joan’s mental capacity was severely reduced, but the registrar who performed the marriage ceremony simply believed Mrs Blass had capacity and gave consent because she was ‘smiling at the time’. Her upset and disappointed family have no redress in law.

Shoosmiths provides advice and support

Shoosmiths, with input from New Square Chambers, Parklane Plowden Chambers and  Halcyon Doctors, has taken a leading role in assisting Daphne Franks with her ‘Justice for Joan’ campaign, preparing guidance notes for the MP to implement changes to law that could help protect vulnerable  people like Joan from predatory marriage  -  if the government takes action.

Andrew Bishop, a senior associate solicitor in the firm’s disputed will and trusts team, who has spent many hours advising and assisting Daphne and Fabian Hamilton MP, explained the current position:

“The civil law potentially allows a predator to coerce a vulnerable or elderly person with no capacity into marrying them. This could take place in secret (as in Joan’s case) as there is no reporting requirement. The marriage would automatically revoke any previous will, so if the vulnerable party dies, the predator receives a large percentage (perhaps even all) of the estate under the intestacy rules tax free. As the spouse, the predator has control over the estate and can determine all the funeral arrangements."

Proposed reform

Predatory marriage can be easily orchestrated by those who know how to abuse or game the system and have a motive (usually in the form of a large and valuable estate) to do so.

Although the criminal law has taken steps to prevent abuse of this kind by criminalising forced marriage under section 121 of the Anti-social Behaviour, Crime and Policing Act 2014, the lack of equivalent reform to the civil law means victims like Joan are still open to abuse and predators can still profit from their victim’s estate.  After consultation, Shoosmiths suggested that the civil law be reformed in the following way:

• S.18 of Wills Act 1837 is repealed so that marriage does not automatically revoke a will.
• The Matrimonial Causes Act 1973 is amended so that s.12(1)(c) is listed as a void ground under s.11 of the Act.
• Courts of England and Wales are allowed discretion not to recognise a marriage abroad if the void grounds as currently listed at s.12(1)(c) of the Act are present.
• The provision in the Family Law Act 1986 which currently gives those with “sufficient interest” in the outcome of the application a right to challenge a marriage requires amendment to allow the court to make a positive order that the predatory marriage was at “its inception an invalid marriage”.
  
  

Prevention is better than cure

Andrew suggests that changing the law so that marriage no longer revokes a previous will in every case should at least remove the incentive for predators to exploit the vulnerable elderly but maintains that prevention is definitely better than cure.  Notices of intention of a marriage could be published on the internet, which would at least alert family members to the event.  Better training for registrars to ensure robust procedures for safeguarding apparently vulnerable individuals should be put in place.

The 'capacity to marry' could be established via a simple questionnaire or checklist. There could be a statutory obligation for registrars to complete this checklist with each party separately as part of the marriage ceremony and ensure records are properly kept. The questionnaire would be very basic and would not be designed to prevent legitimate marriages taking place. Rather, it would be a red flag system to alert Registries/ Registrars to potential issues.

Andrew adds:

“If these amendments are made, it gives those with an interest in the validity of the marriage the right to challenge its validity. The fact a will is not revoked automatically on marriage allows beneficiaries to uphold their loved ones’ wishes and the predatory spouse would not inherit the estate automatically. This reform would have provided a right of action for the Blass family to dispute the marriage in question.”

Protecting the younger vulnerable

If successful, the proposed law change would help improve safeguarding for the elderly vulnerable and their families but in itself does little to address the issue of the possible exploitation of younger vulnerable people, who in most cases will not have a will at all.

Lucy Taylor, partner in Shoosmiths Court of Protection team who specialises in Court of Protection matters, works with clients who have sustained catastrophic brain injuries or are living with life changing and life limiting conditions. This work frequently involves providing professionally managed Deputyship services, administration, ensuring funds are properly invested and managed and maintaining a professional but personal relationship with the client and their families.

While it is true that the legal test of capacity stresses the need to give an individual all the assistance required to support an assumption of capacity in the first instance, Lucy points out that many of her younger clients with limited capacity are equally vulnerable to unscrupulous individuals ingratiating themselves

This is a legitimate concern in cases where that vulnerable client may stand to inherit substantial family wealth or has been awarded significant financial compensation where their impaired capacity is a consequence of medical negligence or personal injury. Lucy comments:

“I know of many parents of young clients approaching adulthood who are beside themselves with worry as to what might happen when they are no longer alive.  How their vulnerable offspring might be seen as targets for unscrupulous people and be easily persuaded to enter into a seemingly caring relationship that has more sinister motives.  At least amending the Family Law Act 1986 so that interested parties would have a right to challenge a marriage might give some redress to concerned families and enhance protection for younger vulnerable people in those circumstances.”

 

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