Capacity To Marry

A deputy was overridden by the Court of Protection recently when it granted permission to a protected party (P) to marry his fiancée. P was 28 years old, and experienced learning difficulties. He was described by his deputy, Adrian Mundell, as “easily persuaded” and someone who had difficulty saying no to others. P was considered to be vulnerable and Mr Mundell feared that he could be taken advantage of.

Mundell v Name 1, [2019] EWCOP 50

Case background

In this case, Mr Mundell applied to the Court of Protection for a declaration that P lacked the capacity to marry his fiancée. One of Mr Mundell’s key arguments was that P did not know or appreciate that there would be financial consequences to getting married.

P had received a significant sum of damages after being involved in a road traffic accident a number of years previously, losing a leg. He had made a Will which left his estate to his parents and the legal consequence of marrying would have been that his Will would automatically be revoked.

Court of Protection decision

The case was heard by the Court of Protection and the Judge, Mostyn J, ruled against Mr Mundell.

The Judge was partly influenced by the fact that P had been able to make a Will, which indicated that whilst legally he did not have capacity, it was not out of the question for P to be able to make some decisions with the appropriate guidance. He recommended that after marriage, P should be advised to execute a codicil (a deed executed in relation to a Will which has the same binding effect) to ensure that the Will was “revived” after marriage and to prevent his wife from inheriting all his estate in the event of his early death. Essentially, because P was able to execute a Will, he was deemed to have the ability to understand and express his wish to marry his fiancée.

Mostyn J’s decision went further however. He explained that it would set a rather unhelpful precedent if the Court were to decide that marriage were entirely about money, and that the “test for capacity to marry…” should not be based, as a minimum, on “…knowledge that divorce may bring about a financial claim”. This, he said, would set the bar too high and would place in effect a requirement across the board that all people looking to marry would have to appreciate and understand what would happen in the event of a divorce. Arguably, this approach would also rather undermine the romance aspect.


Essentially, in the case of Mundell v Name 1, the Court of Protection has set a precedent whereby people without capacity can decide to get married without having any knowledge or understanding of the property and financial implications the union may bring about. That does not mean however that anybody beneath that threshold should be able to marry under any circumstances and this is the type of issue that may well have to be decided on a case by case basis.

The deputy here was overruled but did bring the case with the genuine intention of protecting P’s best interests and this decision should not deter deputies from taking action when they have genuine concerns about P’s welfare in such circumstances.

Mundell v Name 1

How can Nelsons help?

Lewis Hastie is an Associate in our Dispute Resolution team, specialising in inheritance and Court of Protection disputes.

If you have any questions regarding the subjects discussed in this article, please contact Lewis or another member of the team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.

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