How Covid-19 Has Created Fertile Ground For Predatory Marriages: What This Means For Succession And Some Possible Solutions

• Published date: 13 January 2022
• Subject Matter: Family and Matrimonial, Family Law, Wills/ Intestacy/ Estate Planning
• Law Firm: Russell-Cooke Solicitors
• Author: Ms Georgia Haughney

As reflected in recent news coverage, predatory marriages are on the increase, particularly following the restrictions imposed for COVID-19.

A predatory marriage is where a, usually younger, individual marries an elderly person (often with declining mental faculties), with the sole aim of benefitting from their wealth.

Such marriage schemes invariably involve a level of grooming, with the elderly individual being influenced over time and concurrently socially isolated from friends and family who would have otherwise raised concerns or sought to have the marriage investigated or overturned. COVID-19, and the restrictions imposed to curb its spread, inadvertently created fertile ground for these marriages to take place.

Of course, wealth as a motivator is not in itself problematic (having indeed been a key objective in marriages for centuries), nor does the law require that individuals make wise decisions - one can make as unwise a decision as one likes, so long as they have the requisite capacity to do so.

Capacity to marry

One of the key tenets of a predatory marriage, and the aspect that raises concerns, is the allegation that the elderly individual did not have the requisite capacity to marry.

Capacity to marry carries a relatively low threshold of understanding. The leading case, 'Sheffield City Council v E & Anr', sets out the test as having been met if the person:

• Understands the nature of the marriage contract; and
• Understands the duties and responsibilities that normally attach to marriage.

The nature of marriage was described as a "simple one which did not require a high degree of intelligence to understand".

Sheffield went on to clarify that the duties and responsibilities attaching to marriage which needed to be understood, included an understanding:

1. that marriage was a contractual agreement between a man and a woman to live together;
2. to love one another to the exclusion of all others;
3. that it was a relationship of mutual and reciprocal obligations, involving the sharing of a common home and a common domestic life; and
4. of the right to enjoy each other's society, comfort and assistance.

'X City Council v MB, NB and MAB (By his litigation friend the Official Solicitor)' introduced the further requirement that on the basis that a sexual relationship is generally implicit in a marriage, the person must also have the capacity to consent to sexual relations (also a relatively low bar but not one to consider here).

It is notable that the financial...