Predatory Marriages: Mental Capacity Required to Marry

Due to the nature of estate laws, it’s not as rare as one would hope for there to be predatory marriages in BC. The Wills, Estates and Succession Act specifies that any spouse must make the adequate provision for the proper maintenance and support for their spouse’s life in their will. When you marry someone, you become entitled to a portion of their estate. A predatory marriage is when someone takes advantage of an incapable person by acting as a loving spouse, doing so with the intention to receive a portion of their estate. Usually, victims of a predatory marriage are elderly and have accumulated a large estate.

What a Predatory Marriage Looks Like

In a non-predatory marriage, there are typically forms of love, affection, friendship and honesty between the spouses. A predatory marriage exhibits a false sense of these traits, based upon lies where the predator is looking solely for personal gains (through their spouse’s estate). The predator is usually able to manipulate the spouse when they’re in a state of incapacity and poor cognitive abilities.

Because a predatory marriage is a form of manipulation and dishonesty, the predator typically tries to keep everything private or even secretive. They will usually plan for a secret marriage so that none of the elderly’s family members are aware of what is happening until it has already happened. In most scenarios, to an outsider looking in, it can be rather obvious when a predatory marriage has happened.

While not always the case, the predator in a predatory marriage is often the spouse’s primary caregiver. The caregiver can manipulate their dependent spouse, who may marry the predator without understanding the implications. Predators in predatory marriages are often people who have a close relationship with the incapacitated person.

Capacity to Marry

BC courts previously viewed marriage as a simple contract that almost any adult could easily understand. This meant that one did not need a high mental capacity in order to lawfully contract to marriage. Recently, the courts have taken a different approach, noting that one must have a certain degree of mental capacity to enter into a marriage. There is a presumption that after marriage, both spouses had the capacity to marry at the time of the marriage. The burden of proof is on the person claiming mental incapacity in a court case.

The courts may apply the following test to determine capacity to marry:

1. Do you understand who you are marrying?
2. Do you understand the nature and consequences of the marriage?

If the court finds that one spouse lacked the capacity to contract into marriage, they void the marriage. This means the courts consider the marriage to legally have never happened.

BC Courts Confirm Marriages Can Be Ruled Void

The recent BC case of Devore-Thompson v. Poulain (2017) demonstrates an instance where the courts will rule a marriage void ab initio. The courts identified that the capacity to marry has a lower threshold than for managing one’s own affairs, making a will or instructing counsel. Further, “the authorities suggest that the capacity to marry must involve some understanding of with whom a person wants to live and some understanding that it will have an effect on one’s future in that it will be an exclusive mutually supportive relationship until death or divorce.” This established the test for mental capacity to marry.

The victim in this predatory marriage had Alzheimer’s disease and was rapidly deteriorating in terms of their mental health. She had entered into a predatory marriage with a mere stranger after he manipulated her into a false relationship. It was determined that the victim was likely unaware of the wedding and was prompted throughout the process to do what she was told. The courts ruled that she was not able to form a lifetime commitment to this person nor did she have a grip on reality. Due to her dementia, the court determined she lacked the necessary understanding of marriage, and voided the marriage.

The Legal Test for Capacity

The test for mental capacity is an important test in most estate-related matters. The test is commonly used for determining if the will-writer has testamentary capacity in order to create a valid will; however, this case shows that mental capacity must be present at the time of marriage as well. In order to have the capacity to marry, you must understand the effect it will have on your future and understand whom you’re marrying. Although this threshold is lower than for most other contracts, you must meet it to marry lawfully.

If you’re suspicious that a loved one might be unknowingly entering into a predatory marriage, contact an experienced estate lawyer today. We can help to ensure that your loved one’s estate is distributed exactly as they’re intending, without any undue influence affecting their judgement.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.