What can I do to prevent a civil predatory marriage in England and Wales?

Emily Thurgood, Solicitor in our Private Wealth Disputes team in London, writes about the risks and options available to people who have concerns about a predatory marriage.

What is a predatory marriage?

The term ‘predatory marriage’ refers to a marriage where one party manipulates another (often an elderly or vulnerable person) into marrying them, for financial or personal gain. This is very distressing for the families involved and it can be difficult to know what can be done to help protect the victim.

A predatory marriage can have several lasting effects, including revoking a previous will. Should the vulnerable party pass away first without making a new will, this could result in the perpetrator receiving the majority, if not all of the estate, under the intestacy rules.

The key is to act before any marriage has taken place, where possible. If a marriage contract has been entered into, this is legally binding and can be very hard to overturn, especially after one spouse has passed away.

What can I do to stop a predatory marriage?

There are several avenues that can be taken to prevent or delay a predatory marriage. In all of the scenarios, early legal advice can be crucial to take timely steps to action the path which is best for your particular circumstances.

The first step is usually to lodge a notice or objection, usually referred to as a caveat, with the Superintendent Registrar. This will essentially stop any marriage from going ahead if a notice of marriage is lodged (a necessary step before any marriage can take place). At the point of a notice being lodged, the Registrar will launch an investigation into the couple’s circumstances and assess whether or not they are satisfied each party has the capacity to enter into the marriage willingly.

To lodge a caveat, you would need to contact the registry office which is local to the couple and provide the parties’ details, your own details and state your reasons for objecting to the marriage. The caveat details will then be recorded in the system which is accessible by all registrars across England and Wales. If a notice of marriage is subsequently lodged anywhere in England and Wales, it will be flagged for investigation.

If the Registrar is satisfied that the marriage can go ahead after the parties have given their reasons and evidence in response to the caveat, the caveat can be removed. Alternatively, the person who lodged the caveat can withdraw it.

There is a risk with caveats, though. If the caveat is successfully challenged, you may be liable for the costs associated with the Registrar’s investigation, especially if your objection is found to be frivolous. You may even be liable for damages to the couple. It is important that you have a genuine concern about the marriage and hold as much evidence as possible before lodging the caveat.

What evidence do I need to support a caveat?

To support your caveat, you would need to be able to evidence the vulnerable party’s lack of capacity to enter into the marriage or their general vulnerability. This would ideally be a report from their GP or other medical professional regarding their capacity. If the individual has a diagnosis of a condition which affects their memory or cognitive function, such as advanced dementia, then evidence of this should be disclosed.

If no note or diagnosis is available, then an account of specific instances of undue influence (coercion) or alternatively, examples of when they have displayed symptoms of substantive forgetfulness, may be sufficient.

What court options are there to stop a marriage?

There are instances where a caveat will not be enough, and you may need to apply to the courts to obtain an order prohibiting the marriage from going ahead. Most of these applications are made to the High Court in the Family Division and seek what is known as an injunction, to prevent the predatory party from entering into the marriage or approaching the vulnerable party for that purpose. An order can be sought on the basis that the vulnerable party does not have capacity to enter into the marriage or on the basis that you believe them to be at risk of being unduly influenced or coerced into the marriage. If there is concern that the marriage will happen soon, then urgent applications can be made without notice to the other parties.

Alternatively, if there is evidence and reasonable cause to believe that an individual lacks the mental capacity to enter into the marriage then an application can be made to the Court of Protection. The Court of Protection has the power to make orders to protect a vulnerable parties wellbeing. An order preventing a marriage from taking place on the basis that it would not be in the best interest of the vulnerable party and to protect them from harm, would be comfortably within the court’s power. Once again, urgent applications can be made to delay a marriage whilst the vulnerable party’s capacity is being assessed.

Predatory marriage and wills – planned reforms

As outlined above predatory marriages revoke a previous will and, should the vulnerable party pass away first without making a new will, could result in the perpetrator inheriting from the estate.

The Law Commission recently published their report on the law of making a will, and they specifically address this issue of predatory marriages, noting that this type of financial abuse has been causing so much devastation to many families. One of the Commission’s recommendations was to abolish the rule that a marriage automatically revokes a previous will. This would mean that predatory marriages would not automatically result in the new spouse being set up to inherit the majority of the vulnerable party’s estate when they pass away, and prevent any beneficiaries from being disinherited as a result.

The Government has welcomed the Law Commission’s recommendations; however, we shall have to wait and see if any of them make it into legislation.

Religious marriages and acting after a marriage has already taken place

The systems for preventing a registered religious marriage taking place can differ, and so advice should be obtained on the specific religion’s mechanisms for prevention a marriage.

If a marriage has already taken place, then alternative court action can be available, but early legal advice should be sought