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Farrer & Co | Mental capacity case law update: testing the capacity to marry

Unfortunately, many marriages come to an end in court. Recently, however, the Court of Protection had to determine whether a marriage could go ahead at the outset.

In Mundell v Name 1 [2019] EWCOP 50 the Court of Protection had to decide whether a man suffering from a brain injury had the mental capacity to marry, despite having a Court-appointed Deputy to manage (and make decisions about) his property and financial affairs.  

The subject of the case was an unnamed 28 year old man (P), and the hearing was held three days before his wedding was due to take place. P was “a man of some means”, as he previously had received a large sum in compensation after being injured in a road traffic accident. His estate was worth approximately £1.5million and his property and affairs were managed by a Mr Mundell, a solicitor and P's court appointed Deputy.    

P had met his fiancée three years before and since then she and her children had moved into his home. The question as to whether P had capacity to marrywas raised by Mr Mundell who, under the terms of the deputyship, was obliged to consider whether P had the legal capacity to make decisions about his property and affairs. Because marriage can have financial consequences, and particularly so in the event of  divorce, whether P had the capacity to enter into the marriage “contract” was a question which Mr Mundell thought needed to be fully examined by the Court of Protection. Notwithstanding his doubts over whether P understood the potential financial consequences of divorce, Mr Mundell was also concerned about whether P actually wanted to marry. P had previously said that he did not, in fact, wish to marry his fiancée.

Prior to the hearing, P’s fiancée had written to the judge and asked how it could be that P might not have capacity to marry whilst having capacity to make a Will (which he had done two years previously). The judge commented that it would “be surprising if the degree of mental capacity that is needed to execute a will is in fact less than the degree of mental capacity that is needed validly to contract a marriage”. However, the primary question for the court was the legal test for capacity to marry, and whether that test had been met by P. 

Referring to a former ruling, the judge agreed that capacity to enter into marriage does not involve a high or complex level of understanding. Only a "rudimentary" understanding of the marriage contract will do. Specifically, the judge held that the legal test consisted of an objective assessment of capacity by reference to the following principles: (i) marriage is status-specific and not person-specific, (ii) the wisdom of entering into a particular marriage is irrelevant, (iii) the individual wishing to marry must understand the duties and responsibilities that normally attach to marriage (ie the “marriage contract”), including that there may be financial consequences on divorce, and (iv) the individual must not lack capacity to consent to sexual relations. 

The case turned on whether P's basic understanding of what the financial consequences of divorce might be meant that he lacked capacity to marry. The judge agreed with a former ruling, and restated that it is not relevant if an individual fails to understand exactly how financial remedy law and procedure works in the case of divorce. All that is required is an understanding that divorce may bring about a financial claim. P understood this, and so the application brought by Mr Mundell was dismissed. 

Whilst the wedding went ahead as planned, the judge did warn that if the marriage were ever to break down then any financial claim to P's estate was likely to be severely hampered due to the source of P's wealth; most personal injury awards have “near-immunity” from financial claims.

While the facts of P’s case might be relatively unique, it reminds us of the delicate balancing exercise that the Court must undertake to ensure that it protects people where necessary, without unnecessarily imposing itself on their ability to make their own decisions where they have sufficient capacity to do so. 

The test for capacity is decision-specific. Click here to read more on the threshold for different types of decision.

If you require further information about anything covered in this briefing, please contact Joseph de LaceyJoshua Pugsleyor your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, November 2019

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