- Written by
- Stuart Ruff, Partner
A predatory marriage is where a vulnerable person is exploited by someone (often considerably younger) who induces them to marry for their own financial benefit. The classic example is when an older person with dementia or other cognitive impairment is taken advantage of and coerced into marrying. Frequently, these types of relationships are often kept secret from the vulnerable person’s loved ones, who may not become aware of the marriage until after the event or even after their death.
The legal problem that can arise in these circumstances is this. Marriage automatically revokes a Will and the contents of any existing Will, and any wishes that come with it, are instantly replaced with the rules of intestacy unless a new Will is made after the marriage. In general terms, the intestacy rules mean that often a large proportion and sometimes all, of a person’s money and possessions will pass to their spouse on death irrespective of how short the marriage may have been. This is what people who target vulnerable people rely on.
An additional problem is that, as the law stands currently, just because someone lacks capacity, the marriage is not automatically invalid. Under the Matrimonial Causes Act 1973, if a party enters into a marriage whilst lacking capacity or otherwise as a result of undue influence, that marriage is deemed voidable (ie the marriage is valid but is capable of becoming annulled on the application of one of the spouses) rather than void (ie a marriage that does not comply with the requisite legal requirements and is therefore invalid from the beginning).
Even if the marriage is set aside as being voidable, any Will made before the marriage will still remain revoked and once a person has died, the marriage can no longer be set aside for any reason, irrespective of how predatory it may have been. Therefore, unless a new Will has been made after the marriage, the intestacy rules will apply meaning the spouse inherits most, if not all, of the estate
To the unaware or vulnerable person however, this could have devastating unintended effects on their assets after they die and children and other beneficiaries may not realise they have been cut out of an inheritance completely, until after the victim has died. Another concern is that during the relationship the vulnerable person could be persuaded to transfer assets to their new souse or into joint names so those assets pass by survivorship on death.
What can be done to prevent this?
The current state of the law is not necessarily a great help and needs reviewing. However, there are some steps that can be taken if a predatory relationship or marriage is suspected but time is very much of the essence. Predators are increasingly wise to this and will often go to great lengths to keep the relationship a secret from the victim’s family and friends. They will also marry their victim in secret precisely to avoid steps being taken to prevent it.
Setting aside the difficulties with spotting a predatory relationship due to the steps the predatory person will take to keep it secret, if there are concerns, the following steps can be taken:
A) a caveat can be entered at a registry office under Section 29 (1) of the Marriage Act 1949 in order to prevent a marriage from taking place;
B) In the case of prospective marriages, an individual’s capacity may be determined in advance;
C) include an ‘in contemplation of marriage’ clause in a Will preventing the same from being automatically revoked upon marriage. However the clause should relate to the specific marriage to the specific spouse - it cannot be generalised. However, this does not preclude the predatory spouse from bringing a claim for reasonable financial provision pursuant to the Inheritance (Provision for Family and Dependants) Act 1975 meaning the family may become embroiled in litigation with the predatory spouse who may seek money from the estate.
If a predatory marriage is suspected or discovered urgent advice should be sought on the following issues:
A) whether the marriage can be challenged;
B) whether a new Will can be prepared and executed;
C) whether a Deputy needs to be appointed in order to manage the finances of the vulnerable person and consider whether a statutory will is required to mitigate the effects of the predatory marriage on their testamentary intentions.
In the event the predatory marriage is only discovered after death, the only potential application excluded beneficiaries may have would be under the Inheritance (Provision for Family and Dependants) Act 1975 and the nature and circumstances of the marriage would only be one factor the court would take into consideration.
Thackray Williams are supporting Good Divorce Week
News | 28 November 2022
Changes to the Capital Gains Tax rules on divorce - How does the ‘No Gain No Loss’ extension apply to you?
Advice | 31 October 2022
Domestic Abuse – Have you been impacted by this?
Advice | 25 July 2022
Sevenoaks Mums chats to Thackray Williams
Advice | 9 June 2021
A Guide To Buying Your First Home Lunchtime Webinar - Monday 24 May, 2021
Videos | 27 May 2021
Buying a property and how best to protect your share
Advice | 22 April 2021