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Permission to marry granted, despite capacity questions

Monday, 4 November, 2019

The England and Wales Court of Protection (COP) has granted a 28-year-old man permission to marry his fiancée, even though he lacks capacity to manage his property and affairs.

The man, P, has had learning difficulties since childhood. In adulthood, the loss of his leg in a road traffic accident resulted in him receiving an injury compensation award of GBP1.5 million. A deputy, Adrian Mundell, has been appointed to manage his financial affairs, including his compensation, which has been partly spent on buying him a home and partly invested on P's behalf.

Earlier this year, 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. His deputy, however, had serious concerns about this decision, in particular its financial implications, even though P had made a will leaving his whole estate to his parents. However, this will would be revoked on P's marriage, unless he took specific steps for its survival.

The deputy, Mundell, thus applied to the court to prevent the marriage. He cited P's privately expressed indecision about going ahead with it, as well as a clinician's assessment that P is easily persuaded, has difficulty saying no, is very vulnerable and would be open to being exploited. Mundell's concern was that P did not properly understand that, if he married and subsequently divorced, his wife would have a financial remedy claim against his estate. He therefore applied to the COP for a declaration that P did not have capacity to marry.

However, Mostyn J 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 likely to be 'higher than that is needed validly to contract a marriage', he said. He agreed with Parker J's judgment in Southwark v KA, to the effect that people can have capacity to marry without needing to understand how financial remedy law works.

'It would be inappropriate...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', said Mostyn. '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'.

Moreover, said Mostyn, the quantum of P's compensation award had been set for his needs alone. 'If this marriage happens and then later breaks down and a financial claim is made, then the scope of any claim...is necessarily going to be extremely limited', he said. 'There are numerous authorities in the books which have effectively emphasised the near-immunity of personal injury awards from a financial claim.' Any claim by the wife would probably be limited to alleviating serious financial hardship and no more, Mostyn surmised.

He accordingly dismissed the deputy's application and granted P permission to marry his fiancée. However, he also suggested to P that he should execute a codicil to his will that it shall survive his marriage and be effective thereafter, thereby ensuring that his wife will not inherit his estate (Mundell v Name 1, 2019 EWCOP 50).

Sources