People Insights
Contact Us
Get in touch
Contact Us
Published On: October 28, 2019 | Blog | 0 comments

Recent developments in relation to capacity to marry

Traditionally the threshold for capacity to marry had always been viewed as a fairly low bar.  Cases such as Southwark London Borough v KA and others (Capacity to Marry) [2016] EWCOP 20 have drawn parallels between the capacity to marry and the capacity to have sex.

However, there has been a few recent Court of Protection cases which suggest that in order to have capacity to marry one has to understand all the consequences of marriage.  One of the consequences of marriage, at least in England, is that it revokes previous wills. The case of Re DMM (2017) [2017] EWCOP 33 in the Court of Protection imported this level of understanding into the capacity to marry. That of course requires much more understanding that previously, where the person had a will.

Arguably, if these first instance decisions were upheld, it also imports into the test of capacity an awareness as to what the intestacy position for a wife would be and the impact on other potential beneficiaries.

Clearly the law needs further clarification in this regard. The Official Solicitor’s position is that they oppose any lowering of the bar on capacity to marry. They argue that many capacious people are not aware of the effect of marriage on a will. Why should disabled persons have a disproportionate restriction on Article 8 ECHR rights to family life.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

David Wedgwood

Head of Civil Litigation Joint Head of Court of Protection

Get in touch

Call, email or use a contact form – whichever suits you. We’ll let you know the best person to help you get started.

Call or Email

020 7940 4060

No comments

Add your comment

We need your name and email address to make sure you’re a real person. We won’t share your email address with anyone else or send you spam. Please complete fields marked with *.

Leave a Reply

Your email address and phone number will not be published on the website. Other visitors will not be able to see your contact information. Required fields are marked *

Contact Us

How can we help?

Request a Call Back

How can we help?