Does my relative have capacity to marry or enter into a civil partnership and what can I do to protect them?

Everyone is presumed to have capacity to make their own decisions, unless they are shown to lack capacity. The autonomy to make a decision has to be balanced against an understanding that some people do not have the capability to understand the decision-making process. The concept of mental capacity is applied on a case by case basis, so it is necessary to look at each decision and determine whether the person has the capacity to deal with the specific issue at the particular time. This means that someone may have capacity to deal with some day to day issues, such as in relation to their care and who have they have contact with, but not the more serious ones, such as in relation to managing their money, or whether to marry or enter into a civil partnership.

When you are caring for a vulnerable relative, the inclination may be to wrap them up in cotton wool, to protect them. However, the Court of Protection cautions against this.

According to the Mental Capacity Act 2005, a person lacks capacity in relation to a matter if at that material time they are unable to make a decision for themselves because of an impairment of, or a disturbance in the functioning of, the mind or brain.  It does not matter whether the impairment or disturbance is permanent or temporary.

When assessing capacity it is necessary to consider whether the person can:-

1. Understand the information relevant to the decision;
2. Retain that information;
3. Use or weigh that information as part of the process of making the decision; or
4. Communicate that decision (whether by talking, using sign language or any other means).

There has been much case law commenting on the test for capacity to marry, and whether it is person specific (ie does someone have the capacity to marry a particular person) or whether it is act specific (ie does someone have the capacity to marry in general). Caselaw suggests that the capacity to marry is act specific. That is, to be capable of giving a valid consent to marry, a person must be able to understand the nature of the marriage contract, the rights and responsibilities a marriage involves (including those of a financial nature) and they must be free from any undue influence. Capacity to marry must also include capacity to consent to sexual relations.

Capacity to marry is not a welfare test, so it is unnecessary to consider whether the marriage will bring happiness, whether it is a wise decision, or whether the marriage is likely to last. The approach of the Court of Protection tends to be to avoid an overly paternalistic approach and instead to respect the right to a private life for adults with cognitive impairments.

What are the consequences of entering in into a marriage or civil partnership with a person who lacks capacity?

A marriage or civil partnership entered into by someone who lacks capacity is voidable.  A potentially voidable marriage/civil partnership may be declared invalid and non-existent through an annulment, or divorce/dissolution proceedings can be entered into as an alternative.

Who should undertake the capacity assessment?

The issue of who should undertake the capacity assessment will depend upon the  decision to be made. It is commonly undertaken by a medical practitioner, such as a GP, or an approved mental health professional.

If you are concerned that your relative lacks capacity to enter into a marriage or a civil partnership, an application can be made to the Court of Protection. A marriage or civil partnership can be brought to an end by an application made through the family courts.

Nicola Gunn is a partner in the Family and Court of Protection departments. If you require assistance please contact Nicola on 0207 940 4057 or nicola.gunn@anthonygold.co.uk.