Court Of Protection: Capacity To Marry

In the Court of Protection, the assessment of mental capacity is always tailored to the specific decision at hand. Under the Mental Capacity Act 2005, capacity is both time-specific and decision-specific, meaning a person may have capacity for one decision but not another.

The Court must consider whether the individual can understand, retain, use, or weigh relevant information and communicate their decision. This flexible framework ensures that individuals are not unfairly deemed incapable across all areas of life due to difficulties in one domain. For example, the requirements to meet when deciding where to live will differ significantly when compared to the requirements required when providing consent to medical treatment, managing finances, or entering into marriage. Each case before the Court is therefore a careful exercise in balancing protection with autonomy, guided by the nature and complexity of the decision in question.

Turning to the capacity to marry, the legal threshold for capacity to marry is deliberately low. The Court of Protection considers marriage initially as “a very simple contract” requiring only a basic understanding of the mutual commitment. What is required to understand the contract and commitment has developed over time, and the Court of Protection later confirmed that it is not enough to simply understand the ceremony; instead, the individual must understand the nature of the marriage contract and the duties and responsibilities it entails.

It should also be noted that the test for capacity relates to the act of marriage, not the spouse the individual proposes to marry. This means the Court assesses whether the person understands the concept of marriage in general, not whether they understand the implications of marrying a particular individual. If there are, however, concerns about undue influence or predatory marriages, the Courts are able to intervene.

Protective measures

If there are concerns about an individual’s capacity to marry or safeguarding concerns surrounding the marriage, where a proposed marriage is known in advance, protective steps can be taken. A caveat may be entered at the registry office, which will act as an initial hurdle, or an objection can be raised during the marriage process.

On application, the Family Court may also issue a Forced Marriage Protection Order (FMPO), with the Court of Protection then assessing the individual’s capacity. These steps require those involved in officiating the marriage to ensure there are no concerns regarding capacity or safeguarding issues before allowing the marriage to proceed.

Where marriage has already occurred and capacity is in doubt, the marriage can be set aside if it is later found that the individual lacked capacity at the time, with marriages being voidable on such a finding. It should be noted that the marriage is only capable of being voided during the individual’s lifetime. Those who are concerned may also consider making an application for a Statutory Will in order to preserve the intentions of the vulnerable party, given that the effect of marriage invalidates all previous Wills and instead favours the spouse.

Whilst the capacity to marry requires only a modest level of understanding, the Court of Protection plays a vital role in safeguarding autonomy and preventing exploitation.