Capacity to Marry – What’s the Legal Test?

To be or not to be – marriage and the Court of Protection

The recent case of WU v BU (by her litigation friend, the Official Solicitor) [2021] EWCOP 54 is interesting and demonstrates a situation where P was deemed to have capacity to marry (or enter into a civil partnership) but the Court engaged its inherent jurisdiction for the protection of a vulnerable adult, even in circumstances where that individual had capacity to make an independent decision as to their marriage.

P was in her 70s and had formed a relationship with a male (NC) in his 40s. That relationship was initially described as a friendship but progressed towards some level of greater intimacy. P was diagnosed as suffering from vascular dementia and wanted NC to remain part of her life and indeed she very strongly expressed the view that NC was pivotal to her future happiness.  P’s daughters raised various concerns about NC and the nature of his relationship with P and the Court was asked to intervene.

The question before the Court was whether P should be prevented from having contact with NC and whether she had capacity to enter into a civil partnership with him, as had been proposed by the couple. P was a wealthy lady with assets in excess of £1.3m and the likelihood of inheriting significant wealth in the future, from her 90-year-old father.

NC had a chequered employment history and early on in their friendship, requested that P loan him money. NC was found to have incrementally exercised control over P’s affairs, and it was demonstrated within the evidence filed at Court, that NC’s relationship with P was characterised by financial motive.

NC had access to P’s mobile phone and text messages (many of which he replied to on P’s behalf); he sought to put distance between P and her daughters especially during periods when P was unwell; NC sought to intervene in P’s arrangements with her accountants; NC made arrangements for P to draw up a new Will with a firm of solicitors with whom P had no previous dealings.

In addition to those demonstrable patterns of behaviour, NC had numerous convictions for blackmail and dishonesty including an arrest in 2020 over an attempted liquidation of one of P’s investment portfolios. NC’s control extended to P’s personal wellbeing, including arrangements for her medical care and diet. NC also dismissed P’s carer, who he felt was not working to the appropriate standard.  The expert evidence in the case demonstrated that NC had an agenda to eliminate all checks and balances surrounding P’s affairs.

The Court of Protection ultimately ordered that there be no contact between P and NC. An injunction preventing contact was issued, with a penal notice attached due to NC openly breaching previous interim orders.  The Judge made this order whilst recognising that it would cause significant distress to P.  He therefore indicated that whilst this was a final order, he wanted to give P some comfort that it would not necessarily be a ‘forever’ order.  He suggested that P engage with a period of respite away from NC and try to understand how NC’s influence had impacted on her life and the risks to P’s wellbeing that his behaviour had created.

The Judge recognised however that the injunctive order alone would not be sufficient to prevent P from entering into a marriage or civil partnership with NC, as a result of his undue influence. The Judge felt it necessary on the facts of this case, to make a force marriage order for the protection of P. This would prevent P from being able to enter into a marriage/civil partnership with NC, even though P had been found to have capacity to enter into a marriage generally. The Court was satisfied that P would not be giving valid consent to such a marriage or civil partnership and exercised the Court’s inherent jurisdiction to protect P from the perceived harm.

As a partner specialising in Court of Protection work, Alexandra Knipe leads a highly specialised team dedicated to supporting clients who have sustained injuries through accidents, clinical negligence, or mismanagement at birth. Contact Alexandra Knipe on 020 7940 4060 or at alexandra.knipe@anthonygold.co.uk