Marry In Haste Why The Law On Capacity To Marry Needs To Be Reformed

When a person loses mental capacity, they cannot legally make certain decisions and this can include lifestyle decisions such as who to live with, and whether to marry. In PC and NC v City of York Council [2013] EWCA Civ 478, a woman with learning difficulties wanted to live with her husband who had a previous conviction for sexual offences, and the court had to determine whether she had capacity to make this decision herself. The legal test for capacity to cohabit was analysed and the court accepted that it be updated so as to take into account the personal characteristics of the proposed cohabitee. In this case, notwithstanding the man's previous convictions, the court decided that the woman had capacity to make her own decision.

As the law stands, however, the legal test for capacity to marry does not take into account the personal characteristics of the proposed spouse, only whether the person in...