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17 December 2021 | Comment | Article by Roman Kubiak TEP

What power does the court have to prohibit predatory marriage where a person lacks capacity?


The question of capacity and marriage, and the potential abuse of vulnerable people by those who seek to take advantage of vulnerable parties is a topic which is gaining increasing awareness and is one which we have previously discussed.

The judgment in Re BU [2021] EWCOP 54, given by Mrs Justice Roberts, further defines the court’s role in protecting vulnerable individuals from exploitation where they may otherwise have been able to make decisions on personal relationships pursuant to Article 8 of the European Convention on Human Rights.

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The case centred on BU, a 70 year old woman diagnosed with vascular dementia with assets in excess of £1.3 million. In 2016 she had begun a friendship with NC, a man in his fifties who had a chequered past which included multiple convictions for fraud, theft, blackmail and firearm offenses, some of which resulted in custodial sentences. Over time NC began to exert more and more control over BU’s personal life finances and convinced her to not only transfer various sums of cash to him but also a boat, caravan, pick-up truck and van for his own use. BU’s daughter, WU, and extended family attempted to discourage BU’s relationship with NC once they realised his background and discovered he was exerting control of BU’s finances, but this resulted in BU distancing herself from the rest of her family and becoming more closely involved with NC.

Previous court proceedings were started by WU in 2020 and initially resulted in the court making a declaration under the Mental Capacity Act 2005 that BU lacked capacity to make decisions in relation to her property and financial affairs, and a deputy was appointed in this regard. An injunction was also granted prohibiting NC from contacting BU in any way. However, this did not deter BU’s ongoing relationship with NC and NC later admitted to consciously violating the injunction on at least 40 occasions. NC and BU also expressed an intent to enter into a civil partnership.

WU brought these new proceedings seeking to have the court make declarations pursuant to sections 15 and 16 of the Mental Capacity Act 2005 to prevent BU from making a decision to contact NC and to prevent NC from having any further contact with BU, respectively. An order was also sought to prevent a marriage or civil partnership between BU and NC pursuant to section 63A of the Family Law Act 1996, also known as a Forced Marriage Protection Order. Issues around BU’s lack of capacity were considered along with allegations of undue influence and coercive control by NC.

Considering detailed reports not only from a consultant psychiatrist and a consultant psychologist, but also from the court appointed deputy and the local council, Mrs Justice Roberts made an order in favour of the Applicant, WU, that the no contact injunction against NC be replaced with a fresh order to be in place until the court decided to remove it. In addition, despite expert opinion that BU still retained sufficient capacity to make decisions on marriage, the judge issued a separate injunction prohibiting NC from entering into marriage or a civil partnership with BU without first obtaining permission from the court.

The judge was sympathetic to BU and noted that the orders would cause a large degree of distress to BU, given that she maintained her desire to continue a relationship with NC. In spite of that, Roberts J recognized that, due to a combination of BU’s dementia and the court’s finding that NC had exerted a degree of coercive control and undue influence against BU, the court was obliged to consider BU’s overall wellbeing when making the order. Mrs Justice Roberts went further to suggest that it was in BU’s best interests to seek therapy to help her understand how NC had been taking advantage of her vulnerable status and manipulating her.

This case has further reinforced the decision of the Court of Appeal in Re K (Secretary of State for Justice and another intervening) [2020] EWCA Civ 190 where the court found it must be satisfied that there is a real and immediate risk of an individual suffering inhuman or degrading treatment, in contravention of their Article 3 EHCR rights, before stepping in to prevent a potential marriage.

In a situation where the family or friends of a vulnerable loved one have concerns about potential coercion or undue influence from another person, the court may be able to protect that individual even if they are unable to see the danger themselves.

Find more information on our Contested Wills, Trusts & Estates department. Or if you want to discuss any issues raised in this article contact us today.

Author bio

Roman Kubiak is a partner and head of the market leading Contested Wills, Trusts and Estates team.

He advises across the whole spectrum of private wealth disputes, with a particular focus on high value, complex and cross-border disputes including: trust disputes, breach of trust claims and applications to remove trustees; will disputes, particularly those with an international element; claims under the Inheritance (Provision for Family and Dependants) Act 1975; and claims for equitable relief under proprietary estoppel, constructive trusts and resulting trusts.

Disclaimer: The information on the Hugh James 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. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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