Predatory marriage: an update

In the last few years, there has been a growth in predatory marriage.  This is thought to be due to a combination of factors including our aging population, an increase in the rates of dementia, and recent changes in favour of spouses increasing their entitlement when their husband or wife dies without leaving a will.

What is predatory marriage?

The term predatory marriage describes a situation in which a vulnerable person who does not have mental capacity to marry is lured into marriage by someone who is seeking to gain financial advantage.  Such predators are exploiting a gap in the current law whereby marriage has the effect of automatically revoking a will (unless the will was prepared in contemplation of marriage). These marriages often take place in secret without the knowledge of the vulnerable spouse's family.

If, following the marriage, the vulnerable person lacks capacity to prepare an updated will, the intestacy rules will apply so that:

• The new spouse will inherit:
  • (with effect from 26 July 2023) the first £322,000 of assets and all personal possessions, whatever their value; and
  • Half of the rest of the estate;
• The other half will be divided equally between any surviving children of the deceased, and grandchildren whose parents pre-deceased him or her, if any. If the deceased has no children, or grandchildren where relevant, the entire estate will pass to the spouse.

How is it being addressed?

This issue has received greater media coverage recently thanks to the work of Predatory Marriage UK. This campaign was started by Daphne Franks who, following the death of her 91 year old mother, Joan Blass, in 2016, discovered that Joan had married a much younger man in secret five months prior to her death. Joan had severe dementia and terminal cancer and never knew that she was married. Among other aims, the campaign, which has received support from Fabian Hamilton MP, seeks to achieve the following:

• Change the law such that a marriage does not automatically revoke a will.
• Create an offence of Predatory Marriage, perhaps as a subset of Forced Marriage.
• Publish Notices/Banns on the Internet.
• Train registrars to look for signs of insufficient mental capacity to marry.
• Add a robust set of questions for registrars to ask at marriage, with clear procedures for them to follow if correct answers are not given.
• Ensure registrars will stop a marriage ceremony if there are any doubts as to the capacity of one of the parties to marry.
• Add “The marriage was fraudulent” to the permitted reasons to annul a marriage after one party has died.

The Law Commission has recently published its report into the reform of marriage laws and has looked at the issue of predatory marriage.

What are the recommendations of the Law Commission?

The Commission recommends a more rigorous notice procedure with marriage notices being displayed on a publicly accessible Government website for the waiting period. Having notices of marriage displayed online will make it easier for concerned families to check whether a wedding is planned to take place. Those who are aware of an imminent marriage may enter a caveat where there is a risk that a person lacks the capacity to marry.

The Report also recommends that officiants should have a specific duty to ensure that the parties freely express consent to marry each other during the ceremony, which implies a duty to ensure that both parties have capacity to marry and are freely agreeing to be married.

The Report noted that specific concerns about the impact of predatory marriages on an existing will will be addressed in the Law Commission's projects on wills, which is currently paused at the Government's request.

How will the implementation of the Law Commission's proposals address the issue of predatory marriage?

The Commission has provisionally proposed in previous initial reports that, in the event that a marriage continues to revoke a will, it should not do so where a person has capacity to marry but does not have (and is unlikely to recover) testamentary capacity.

If that proposal is enacted, while it will not address all of the concerns relating to predatory marriage, it is likely to resolve one of the most egregious consequences of predatory marriage.  It is to be hoped that this will remove a significant financial incentive for a predatory marriage, and deter potential predators from exploiting vulnerable people in this way.