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Cognitive Impairment and the Capacity to Marry
Dr Frances Matthews
In Ireland, and many other countries, only adults with the necessary decision making
capacity are lawfully able to marry. The validity of a marriage is governed by statutory and
common law considerations. The Assisted Decision Making (Capacity) Bill 2013, which is part
of the process of ratifying the Convention on the Rights of Persons with Disabilities,
proposes changes in the legislation governing marriage, in particular the repeal of the
Marriage of Lunatics Act 1811 and the discontinuation of wardship, will mean that some
cognitively impaired people will be able to marry. Case law from other jurisdictions may
be important in deciding whether an individual has the capacity to marry. The test for the
capacity to marry varies between common law jurisdictions.
I – Introduction
This paper examines the current Irish law on marriage for those who are cognitively
impaired, and the proposed changes contained in the new Assisted Decision Making (Capacity)
Bill 2013. Marriage is both a human right and civil contract: it is subject to common law and
statutory considerations. The requirements of the law should be balanced against the rights
of the persons involved, both under Article 8 and 12 of the European Convention on Human
Rights and the Constitution. Those who are Wards of Court are unable to marry as the
process of wardship strips them of that and other rights. In Ireland the Marriage of Lunatics
Act 1811 is still in force, forbidding the marriage of those who are Wards and of others who
are sufficiently cognitively impaired.
Marriage is a very personal matter involving a relationship between two individuals
which may have economic consequences for others who are not part of the relationship.
Cognitively impaired persons’ capacity to marry has been considered in a number of common
law jurisdictions, most notably England, Canada and Australia. In Ireland, some marriages
have been nullified due to the inability of one of the parties to consent to the marriage due to
mental illness, but there is no case law on the capacity to consent to marriage on the part of

Dr. Frances Matthews M.B. Ch.B. M.F.F.L.M. M.B.H.L. LL.M. B.L. has worked as a doctor and medico-legal
advisor in Ireland, New Zealand and the United Kingdom. She has a special interest in the human rights of older
people and was formerly a human rights policy officer for Age Action Ireland.
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older persons with dementia, or those with intellectual disabilities. In England the trend has
been in favour of the autonomy of the individual, using a functional test of capacity. In
Australia, despite an apparently high statutory threshold for the capacity to marry, there is
in practice a relatively low threshold, while Canada has introduced a more stringent test for
the capacity to marry. In Canada and Australia evidence that the marriage is exploitative or
abusive may result in a declaration that it is void due to the incapacity of one of the parties.
In England this is not usually the case.
II – What is Marriage?
In Ireland marriage is both a right under the Constitution and the European
Convention on Human Rights (subject to some restrictions), and a civil contract.
A. Marriage: a Human Right
Marriage enjoys a protected status under the Constitution; and the right to marry is
asserted in article 12 of the European Convention on Human Rights.
(i) The Constitution
Ireland’s Constitution gives special protection to the institution of marriage and to
the family. Article 41.3.1 says: “The State pledges itself to guard with special care the
institution of Marriage, on which the Family is founded, and to protect it against attack.” The
State has had a conservative view of marriage and the protection from attack it may require.
In Zappone and Gilligan two women who had been lawfully married in Canada sought
recognition of their marriage and the same Irish pension rights as married heterosexual
couples. Dunne J. refused to redefine marriage to encompass same-sex unions and stated that
Article 41 in using the term “guarding” provided the necessary justification for this.1
The view of marriage expressed in this case seems to be that marriage needs guarding
from some people, and that to confer protection on it necessitated preventing some people
from marrying.
1
Zappone and Gilligan v. Revenue Commissioners and Ors. [2008] 2 I.R. 417 at para 248:
“The final point I would like to make on this topic is that if there is any form of discriminatory
distinction … by reason of the exclusion of same sex couples from the right to marry then Article 41
in its clear terms as to guarding provides the necessary justification”.
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More recently the 34th Amendment of the Constitution (Marriage Equality) Bill 2015
allowed a referendum on amending the Constitution to permit same sex marriages, which will
still be subject to the common law and statutory requirements for marriage: marriage equality
in the context of the Bill refers to same sex marriages, and does not affect the rights of the
cognitively impaired.
In Nicolau v. An Bord Uchtala it was held that the Constitutional protection of the
family extended to the marital family, and conferring the same protection on the non-marital
family would be to disregard the pledge to guard the institution of marriage.2 The plaintiff
was the father of a child, but was not married to the child’s mother. The Supreme Court
rejected his claim that he should have been consulted when the child was adopted with the
consent of the mother. In Hyland v. Minister for Social Welfare3 the Supreme Court held that
the fact that married couples received smaller social welfare payments than cohabiting couples
was a failure to protect the institution of marriage. In Murphy v. Attorney General the Supreme
Court held that the taxation of a married couple at a higher rate than two cohabiting single
people constituted a breach by the State of its undertaking to guard with special care the
institution of marriage.4
These cases reveal a view that marriage is desirable, has a certain exclusivity, and
confers many advantages on married people and their children.5 A more inclusive view of
marriage was adopted in O’Shea and O’Shea v Ireland6 which concerned a woman who wanted
to marry the brother of her husband during the lifetime of the husband. At the time this was
unlawful. The High Court held that this was an unjustifiable restriction of her Constitutional
right to marry.
The Constitutional right to equality is tempered with due regard for the capacity of
the person.7 Those with impaired decision making capacity cannot rely on their
Constitutional right to equality when contemplating marriage, as the Constitution does not
allow that all are equal before the law.8
Nicolau v. An Bord Uchtala (1966) I.R. 567.
Hyland v. Minister for Social Welfare [1990] I.L.R.M. 213.
4 Murphy v. Attorney General [1982] 1 I.R. 241 at 274.
5 Ibid. at 287.
6 O’Shea (Michael) and O’Shea (Maura) v. Ireland [2007] 1 I.L.R.M. 460.
7 Article 40.1.
8 See for instance Murphy v. Attorney General [1982] 1 I.R. 241 at 276.
2
3
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The European Court of Human Rights upholds the exclusive nature of marriage in
some respects.
(ii) European Convention on Human Rights
The right to marry has been considered by the European Court of Human Rights,
often in relation to same sex marriages, but also in relation to the mentally ill.
Article 12 appears to give states some latitude regarding the right to marry, allowing
that: “Men and women of marriageable age have a right to marry and found a family,
according to the national laws governing the exercise of this right.” The European Court of
Human Rights (E.Ct.H.R.) disapproves of blanket bans on marriage for those under
guardianship (or wardship) due to a presumed lack of mental capacity.
The E.Ct.H.R, when interpreting the Convention, has considered marriage both as
part of Article 8, the right to privacy and family life, and Article 12, the right to marry. Many
E.Ct.H.R. cases relate to same sex marriage, but in Lashin v. Russia the rights of a man who
suffered from schizophrenia and was under guardianship due to lack of mental capacity, were
considered.9 The man wished to marry his fiancée but could not lawfully do so because he was
under guardianship, a situation analogous to wardship in Ireland. The court heard evidence
that in thirteen out of twenty five EU states a decision that the person lacks capacity
automatically leads to loss of the right to marry. In six states there is an express ban on the
right of mentally disabled persons to marry.10 The court held that Mr. Lashin’s right to
private life under Article 8 of the Convention had been violated when he was deprived of his
rights including the right to marry. The Court did not consider the matter separately under
Article 12, because the loss of his legal capacity; his ability to bear and assert legal and civil
rights, meant that the inability to marry was part of a wider pattern of violations of the right
to privacy and family life expressed in Article 8.
In Shtukatarov v. Russia the E.Ct.H.R. considered the case of a man with schizophrenia
who had been admitted to guardianship without his knowledge.11 Once admitted he was
Lashin v. Russia Application no: 88117/02, 22nd January 2013.
Ibid. at para. 67.
11 Shtukatarov v. Russia Application no: 44009/05, 27th June 2008.
9
10
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effectively unable to challenge the ruling. There were violations of Article 6, 8 and 5.
The court discussed the protection of vulnerable adults and approved a number of principles
in relation to their care:
The legislative framework should, so far as possible, recognise that different degrees
of capacity may exist and may vary from time to time. Accordingly a measure of
protection should not result automatically in a complete removal of legal capacity.
However a restriction of legal capacity should be possible where it is shown to be
necessary for the protection of the person concerned.
In particular, a measure of protection should not automatically deprive the person
concerned of the right to vote, or make a will, or to consent or refuse consent to any
intervention in the health field, or to make other decisions of a personal character at
any time when his capacity permits him to do so.12
(iii) Convention on the Rights of Persons with Disabilities
Ireland has signed, but not yet ratified the Convention on the Rights of Persons with
Disabilities (C.R.P.D.) which forbids discrimination against those with disabilities, both
physical and mental. The Convention introduces the concept of legal capacity, the ability to
enjoy and exercise the same rights as others in society, matters referred to in both Lashin and
Shtukatarov.
Article 3, reproduced below, sets out the general principles:
The principles of the present Convention shall be:
a. Respect for inherent dignity, individual autonomy including the freedom to make
one’s own choices, and independence of persons;
b. Non-discrimination;
c. Full and effective participation and inclusion in society;
d. Respect for difference and acceptance of persons with disabilities as part of human
diversity and humanity;
e. Equality of opportunity;
f. Accessibility;
12
Ibid. at para. 59.
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g. Equality between men and women;
h. Respect for the evolving capacities of children with disabilities and respect for the
right of children with disabilities to preserve their identities.
Article 3 and Article 4 uphold principles of equality before the law for those with
disabilities, together with an obligation on the part of the State not to discriminate against
them, and to protect and promote their rights, enabling full and effective participation and
inclusion in society, which would seem to include the right to marry. Article 12 reaffirms
those rights, and recognises those with disabilities as the bearers of the same rights as others.
The State is required to ensure that the disabled are not subject to abuse.
Article 12 - Equal recognition before the law
1. States Parties reaffirm that persons with disabilities have the right to recognition
everywhere as persons before the law.
2. States Parties shall recognize that persons with disabilities enjoy legal capacity on
an equal basis with others in all aspects of life.
3. States Parties shall take appropriate measures to provide access by persons with
disabilities to the support they may require in exercising their legal capacity.
4. States Parties shall ensure that all measures that relate to the exercise of legal
capacity provide for appropriate and effective safeguards to prevent abuse in
accordance with international human rights law. Such safeguards shall ensure that
measures relating to the exercise of legal capacity respect the rights, will and
preferences of the person, are free of conflict of interest and undue influence, are
proportional and tailored to the person’s circumstances, apply for the shortest time
possible and are subject to regular review by a competent, independent and impartial
authority or judicial body. The safeguards shall be proportional to the degree to which
such measures affect the person’s rights and interests …
Article 23(1)(a) asserts the right of “all persons with disabilities who are of
marriageable age to marry and to found a family on the basis of free and full consent of the
intending spouses”. This article appears to recognise that not everyone will be able to give
free and full consent, either by reason of lack of the necessary decision making ability, or due
to coercion or duress.
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The general principles place emphasis on autonomy, non-discrimination and equality
and suggest marriage should be available to some of the cognitively impaired in the same way
as it is to others in society. The requirement to protect the disabled from abuse may result in
efforts to prevent the marriage of the cognitively impaired for fear of exploitation or abuse by
their putative partners. This requirement to protect such people from abuse may be
problematic when balanced against the right to equality: many people who are not disabled
are abused by their marital partners, but this is not seen as evidence of lack of capacity to
marry. Case law from Australia where the Convention was ratified in 2008, and from Canada,
suggests that the courts would err on the side of protection and void a marriage which
involved financial or physical abuse, or duress, but uphold the autonomy of the person if there
was no evidence that abuse was involved.
Ireland has not yet ratified the C.R.P.D., but when it does so the Marriage of Lunatics
Act 1811 will be repealed.
B. Marriage: a contract
In Ireland marriage is often viewed as a form of contract governed by both statute and
common law, as well as a Constitutional right. Marriage in Ireland was defined in 1985 as
“the voluntary and permanent union of one man and one woman for life”,13 though this
statement must now be qualified after the Marriage Referendum of May 2015. Marriage
consists of four elements: it must be voluntary; it must be between two people; it must be
intended to be for life; and it must be monogamous.
The Civil Registration Act 2004 deals with impediments to marriage in section 2: the
parties must be over the age of 18 years unless an exemption has been obtained; the parties
must not be within the forbidden degrees of relationship; neither of the parties must already
married; the parties should be of opposite sexes; and the marriage must not be void under the
Marriage of Lunatics Act 1811. When considering the capacity to marry the voluntary nature
of marriage is emphasised: is the person able to freely consent to the marriage in much the
same way as they would enter a contract?
13
B. v. R. [1995] I.R. 35.
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Although often seen as a contract, marriage cannot be ended as easily as other
contracts, nor do the parties have the same remedies for breach of contract as people in other
civil contracts. The marital contract has implications for the future lives of the spouses, for
their children and other potential beneficiaries of their wills. It affects not only relationships
between persons, but the relationship between the parties and the state. Marriage confers
benefits and obligations on both parties.
In Ireland spouses must support each other, but marriage does not provide automatic
access to the property of the other spouse, as it does in some jurisdictions. The Matrimonial
Homes Bill 1993 which would have conferred equal property rights in the family home on both
spouses was held to be unconstitutional.14 Marriage in itself does not confer a beneficial
interest in the family home upon a new husband or wife, unless it is by way of a resulting or
constructive trust.15 Article 41.2 of the Constitution does not confer a beneficial interest in
the family home upon a spouse who has simply performed as a homemaker.16 The property
owning spouse may, of course, choose to make the new spouse a joint owner of the family
home and other property, and may choose to open a joint bank account with the new spouse.
Upon divorce or separation the courts have the power to reassign property rights including
rights over the family home and other property. The family home is given some protection
under the Family Home Protection Act 1976 as amended by the Family Law Act 1995 as the
family home cannot be sold leased or transferred by the owning spouse without the consent
of the non-owning spouse. Upon the death of a spouse the survivor is entitled to benefits
either under a will,17 or by election,18 or under the intestacy laws.19
In Ireland, and many other jurisdictions, a prior will is revoked by the marriage of the
testator, unless the will has been made in contemplation of the new marriage. This may result
in loss or reduction of anticipated benefits to some of the beneficiaries of a previous will, and
lead to litigation on their part. Older people have a lifetime of accumulated assets to dispose
of, and a marriage later in life may be sometimes be impugned on the grounds of lack of
consent by one of the parties, as part of an attempt to invalidate a will. Estate of Park20 and
In the matter of Article 26 of the Constitution and in the matter of the Matrimonial Home Bill, 1993 [1994] 1 I.R.
305.
15 For example C v. C [1976] I.R. 254.
16 L v. L [1992] I.L.R.M. 115.
17 Succession Act 1965, s. 111 .
18 Succession Act 1965, s. 115.
19 Succession Act 1965, s. 67.
20 The Estate of Park [1953] 2 All E.R. 1411.
14
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some later Canadian cases concerned inheritance and the validity of marriages contracted late
in life, but other cases concern living spouses and attempts by others to prevent marriages or
void existing ones owing to concerns for the well-being of a person with cognitive
impairment.
(i) Marriage and the cognitively impaired
There are two main categories of marriage which give rise to concerns that the
cognitively impaired party is being exploited:
Firstly, marriages between a younger person without property or assets and an older
person who is cognitively impaired, which the younger partner enters in order to gain control
over the other partner’s assets when they are alive, and to inherit their property after they
are dead. Older adults suffering from dementia and other progressive neurological disorders
face the prospect of deterioration in their ability to make decisions over time. They and others
with cognitive impairments may, at some stage lack the capacity to marry; a small number
may become targets of the unscrupulous. Such relationships are called predatory marriages
in Canada21, but they only form a small part of a spectrum of relationships between couples.
In Ireland in 2011 19,855 marriages were solemnised, but only 432 of these involved a bride
or groom over the age of 60: the numbers of older people marrying or remarrying are
relatively small;22 the number of predatory marriages even smaller.
Secondly, marriages between a cognitively impaired person and another person who
may abuse them physically and/or sexually, where the issue of property are less important.
A third category emerging from case law in the U.K. is the category of persons who
enter into arranged marriages and who cannot validly consent to the marriage. Their families,
who arranged the marriage, regard such arrangements as a means of protecting the person
and providing them with care and support; others regard such marriages as exploitative and
invalid.23
K. Whaley and others, Capacity to Marry and the Estate Plan (Aurora: Canada Law Book, 2010).
Marriages and Civil Partnerships in 2011 (C.S.O. Statistical Release, 30 September 2013), at
http://www.cso.ie/en/releasesandpublications/er/mcp/marriagesandcivilpartnerships2011/.
23 See Sandwell Metropolitan Borough Council v. R.G. and G.G. and S.K. and S.K.G. [2013] E.W.H.C. 2373 (C.O.P.)
for a review of some of the complexities of these marriages.
21
22
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Finally, two cognitively impaired people may wish to marry, for example two older
persons who meet in a nursing home. This category may become increasingly common but
there is less concern about exploitation and more concern about the level of support the two
people might require in their new life together.
The reality of a marriage in the first or second category may be that the relationship
brings both parties years of happiness and protects one spouse from admission to an
institution or exploitation by others. The marriage may address feelings of loneliness and
isolation, and may result in more autonomy and security than would be achieved alone.
In Ireland there is limited case law on the mental capacity to marry, and what exists
is in the context of annulment. Duress has been accepted as grounds for annulment, for
example in Griffith v. Griffith,24 but the naivety of the husband was not regarded as a lack of
capacity to marry: he did not consent freely and did not voluntarily enter the marriage.
Mental illness has been a barrier to the validity of marriage if the person was too
unwell to be unable to consent to the marriage. In S. (J.) v. J. (M.) the High Court held that
the respondent was unable to consent to the marriage because of his mental illness (bipolar
disorder).25 Severe schizophrenia with the attendant delusions and hallucinations has also
been held to be a barrier to valid consent to marriage,26 although the diagnosis of a mental
illness is not in itself sufficient to preclude consent, particularly if the person is undergoing
medical treatment and the illness is quiescent. In O’K. v. O’K. O’Higgins J. briefly considered
the capacity to marry on the part of a man with bipolar disorder and held that the medical
and other evidence suggested that he did have the capacity to marry, but granted an
annulment on the grounds that the man was unable to sustain a marital relationship.27
(ii) Impediments to marriage
The State imposes certain restrictions on the right to marry, and impediments to
marriage are listed in section 2 of the Civil Registration Act 2004. The Act recognises the
voluntary nature of marriage and in section 2(2)(d) states that there is an impediment to a
Griffith v. Griffith [1944] I.R. 35.
S.(J.) v. J.(M.), High Court, unreported, 10th December 1997.
26 E.(M.) v. E.(A.) [1987] I.R. 447.
27 O’K. v. O’K. [2005] I.E.H.C. 384.
24
25
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marriage if the marriage would be void by virtue of the Marriage of Lunatics Act 1811: those
who are Wards of Court are deemed to be incapable of contracting a valid marriage.
The Marriage of Lunatics Act 1811 has never been repealed in Ireland. Its original
language is archaic and cumbersome:
Any person who has been, or at any time hereafter shall be found to be a Lunatic by
any inquisition taken or to be taken by virtue of a commission under the seal of Great
Britain, or the Great Seal of Ireland respectively, or any Lunatic or any person under
a phrenzy, whose person and estate by virtue of any act of Parliament now or hereafter
shall be committed to the care of particular trustees, shall marry before he or she is
declared of sane mind … every such marriage shall be and is hereby declared to be
null and void to all intents and purposes whatsoever.28
The exact meaning of the words “Lunatic” and “phrenzy” is unclear, and would
probably be unrecognisable to modern medical practitioners who may be called upon by the
courts to assess a person’s capacity to marry.
There is a presumption that Wards lack the capacity to marry.29 All others are
presumed to have the capacity to marry unless the contrary can be shown. Some people who
are not Wards may lack the capacity to marry, and some people who are Wards of Court may
in fact have the capacity to marry, but their status as Wards effectively deprives them of the
right to make any decision for themselves. This all or nothing approach to assessing capacity
is known as a status based assessment: it has been superseded by functional assessments of
capacity.
Section 58 of the Civil Registration Act 2004 allows a person to lodge an objection to a
marriage with the registrar of births marriages and deaths, and provides that the matter may
be investigated. If the objection is made on the grounds that the marriage would be void by
virtue of the Marriage of Lunatics Act 1811, the objection must be supported by a certificate
from a registered medical practitioner.30 The Act does not require any documentation from
the High Court confirming that the person is a Ward of Court. Although wardship would
Marriage of Lunatics Act, 1811 (chapter XXXVIII, “An Act to further prevent the Marriage of Lunatics”, 31st
May 1811).
29 This is a statutory presumption contained in the Marriage of Lunatics Act 1811.
30 Civil Registration Act, s. 58(11).
28
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mean that the person lacks the capacity to marry, other reasons are acceptable, for instance
dementia or stroke leading to lack of sufficient decision making capacity would also trigger
an investigation. Part of the investigation would involve an assessment of the person’s ability
to consent to the marriage and thus enter it voluntarily. Ireland does not yet have a statutory
definition of mental capacity, although many other common law countries do.
C. Assessing the Capacity to Marry31
For many years the courts have recognised that the capacity to make a decision is
dependent on the nature and gravity of the decision, the time at which the decision is made,
and the situation and condition of the person making it. In Ireland there is a general
presumption of capacity unless the person is a Ward of Court. Statutes in England and other
countries use a functional test of capacity, which reflects the common law:32
In England in Masterman-Lister v. Brutton and Co33 assessment of capacity to make
various decisions was discussed. It was held that when making a decision, “[t]he mental
abilities required include the ability to recognise a problem, obtain and receive, understand
and retain relevant information …; the ability to weigh the information … in the balance in
reaching a decision; and the ability to communicate that decision”.34
The court considered that a person should have the necessary mental capacity in order
to make a legally effective decision. There were two broad tests for capacity: 1. The capacity
required is capacity in relation to the transaction to be effected; and 2. The capacity to
understand the nature of that transaction when it is explained to them.35
The English Mental Capacity Act 2005 provides that “a person lacks capacity in relation
to a matter if at the material time he is unable to make a decision for himself in relation to the
matter because of an impairment of, or a disturbance in the functioning of, the mind or
brain.”36 Section 3 clarifies the problem of inability to make decisions.
See M. Donnelly, “Assessing legal capacity: Process and the operation of the functional test” [2007] Judicial
Studies Institute Journal 141-168.
32 For example s. 3 of the Mental Capacity Act 2005 (England and Wales), s. 5 of the Protection of Personal and
Property Rights Act 1988 (New Zealand).
33 Masterman-Lister v. Brutton and Co [2002] E.W.C.A. Civ. 1889.
34 Ibid. at para. 26.
35 Ibid. at para. 58.
36 Mental Capacity Act 2005, s. 2(1).
31
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(1) For the purposes of section 2, a person is unable to make a decision for himself if
he is unable (a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the decision, or
(d) to communicate his decision (whether by talking, using sign language or any other
means).
(2) A person is not to be regarded as unable to understand the information relevant to
a decision if he is able to understand an explanation of it given to him in a way that is
appropriate to his circumstances (using simple language, visual aids or any other
means).
(3) The fact that a person is able to retain the information relevant to a decision for a
short period only does not prevent him from being regarded as able to make the
decision.
(4) The information relevant to a decision includes information about the reasonably
foreseeable consequences of—
(a) deciding one way or another, or
(b) failing to make the decision.
The test for capacity is issue specific and time specific: it relates to that person and the
particular decision to be made at that time, like the test in Masterman Lister. The test for
capacity is a functional one and an inability to make a particular decision is not an indication
of an inability to make any decision at all. In addition, the Act cautions against assessing
capacity of the basis of the person’s age or appearance.
The Irish Assisted Decision Making (Capacity) Bill 2013, which is part of the process of
ratifying the Convention on the Rights of Persons with Disabilities, introduces a functional
test for capacity in section 3, where it is said that:
(1) … a person’s capacity shall be assessed on the basis of his or her ability to
understand the nature and consequences of a decision to be made by him or her in the
context of the available choices at the time the decision is made.
(2) A person lacks the capacity to make a decision if he or she is unable (a) To understand the information relevant to the decision,
(b) To retain that information,
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(c) To use or weigh that information as part of the process of making the decision,
(d) To communicate his or her decision …
The Bill does not caution against assessing capacity based on the person’s age or
appearance, but does recognise that making an unwise decision is not necessarily evidence of
incapacity.37
In M.X. v. H.S.E.38 the functional approach to capacity was discussed in relation to a
woman suffering from severe mental illness who resisted treatment and the monitoring of her
white cell count which entailed taking regular blood samples:
… such decision making in this area should involve a functional approach to capacity,
involving an issue specific and time specific assessment of the plaintiff’s decision
making ability. One determination should not be permanent; the processes must refer
to “differences in capacity” (Article 40.3 of the Constitution). This involves analysing
not only the differences in capacity between patients, but also variations in … capacity
at particular times. Only in that manner can their rights be properly vindicated in
accordance with the Constitutional requirement.39
The Law Reform Commission discussed defining capacity in their Report on Vulnerable
Adults and the Law40, while the capacity to make medical treatment decisions was discussed
by Laffoy J. in Fitzpatrick and Ryan v. K.41
Different standards apply to different decisions: the ability to make a will, for instance,
is regarded as requiring a higher standard of decision making on the part of a person than the
capacity to marry.
In The Estate of Park,42 a leading English case on the capacity to marry and make a
will, it was held that the testator had the capacity to marry at 11.30a.m. but lacked the capacity
to make a will on the afternoon of the same day. Park contains extensive discussion on the
Assisted Decision Making (Capacity) Bill 2013, s. 8(4)
M.X. v. H.S.E. and Ors [2012] I.E.H.C. 491.
39 Ibid. at para. 79.
40 Law Reform Commission, L.R.C. 83-2006, Report on Vulnerable Adults and the Law (Dublin: Law Reform
Commission, 2006).
41 Fitzpatrick and Ryan v K. [2008] I.E.H.C. 104.
42 The Estate of Park [1953] 2 All E.R. 1411.
37
38
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capacity to marry which has influenced later cases, but England and other common law
countries have diverged from the original philosophy expressed in Park.
III - Common Law Jurisdictions
In England, Australia and Canada marriage is viewed as a contract, and the ability to
enter into it relies on the ability to understand the nature of marriage. In England the most
recent cases use a functional test of capacity and do not consider either the ability to manage
property, or the effect of the marriage on the person or their children as essential to the
decision to marry. By contrast in Canada, the person must consider the nature of the marriage
contract, the state of previous marriages and the effect of the marriage on their existing
children; and in Australia the person must be able to understand the effect of the marriage to
that particular partner. In both Canada and Australia these extra factors have made it easier
for the courts to protect vulnerable persons from exploitation, while modern English
jurisprudence places greater emphasis on the autonomy of the individual and the functional
assessment of capacity.
A. English Case Law: contracts, property and consent to sexual relations
Most early English cases view the capacity to marry as being on the same level as the
capacity to enter into any civil contract, and requiring only the simplest and most basic
understanding of marriage. Later cases concentrate on the person’s ability to make the
decision to marry, and do not have any regard for the suitability or otherwise of the intended
spouse. In the 1885 case of Durham v. Durham it was held that “the contract of marriage is a
very simple one, which does not require a high degree of intelligence to comprehend … A
person who understands the language of the ceremony may still be affected by delusions or
other insanity so as to have no real appreciation of his significance”.43
In The Estate of Park it was held that:
In deciding whether or not a marriage is invalid on the ground that one of the parties
was of unsound mind at the time it was celebrated, the test to be applied is whether he
was capable of understanding the nature of the contract into which he was entering,
Hannen P., in dismissing a petition for annulment of the marriage of the Earl of Durham on the grounds that
his wife lacked the capacity to marry: Durham v. Durham [1885] L.R. 10 P.D. 80 at 82
43
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free from the influence of morbid delusions on the subject. To ascertain the nature of
the contract of marriage a person must be mentally capable of appreciating that it
involves the duties and responsibilities normally attaching to marriage.44
In Park there was no suggestion that the plaintiff, the deceased’s wife was involved in a
predatory or exploitative marriage: the evidence adduced suggested that Mr Park had
pursued her with the intention of marrying her. The case concerned the validity of his wills,
one made on the day of the marriage, and one made prior to his marriage. The prior will
would be revoked by the marriage, if it were a valid marriage, and the estate would then be
distributed under the intestacy rules, given that Mr Park lacked the capacity to make a will
on the day of his marriage. If the marriage were invalid, the prior will was not revoked.
In deciding whether the deceased had the capacity to marry the Court of Appeal
considered the specific facts of the case. The deceased, an elderly widower had moved his new
wife into his flat, ensured that other people moved out, and made financial provision for her.
This was sufficient to show that he understood the nature of his obligations to her.45 The test
enunciated by Karminski J.46 in the court of first instance was approved:
(i) The parties understand the nature of the marriage contract.
(ii) The parties must understand the rights and responsibilities which marriage entails.
(iii) Each party must be able to take care of his person and property.
(iv) It is not enough that the party appreciates that he is taking part in a marriage
ceremony or that he should merely be able to follow the words of the ceremony; if he
lacks what is involved in (i)-(iii) the marriage is invalid.
The idea that the person must be able to take care of themselves and their property is
central to early English cases regarding the capacity to marry. In Browning v. Reane47 it was
held that if the person was not only unable to consent “for want of reason” but was also unable
to take care of their own person and property due to “mental imbecility” they could not
therefore dispose of their own person and property by way of a marital contract or any other
contract. The court specified that the person should be unable to manage their property and
In the estate of Park [1953] 2 All E.R. 1411 at 1429.
Ibid. at 436.
46 In the estate of Park [1953] 2 All E.R. 408 at 415.
47 Browning v. Reane [1812] 2 Phill. Ecc. 69 at 71.
44
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person due to mental, rather than physical disability, an early recognition that physical
disability did not preclude rational decision making.
These early cases skirted around the issue of the ability to consent to sexual relations
and concentrated on marriage as a civil contract. In Park the plaintiff was questioned about
her physical relationship with her husband, and she told the court that they had agreed not
to have sex: this agreed lack of consummation was not a reason to annul the marriage. The
court emphasised the deceased’s need for companionship: “it is understandable if an old and
ailing man should feel more comfortable if he had a companion always with him …”.48
Although Park and some Canadian cases relate to marriages between older people and
younger spouses, much recent English case law concerns marriages of younger persons with
intellectual disabilities or brain injuries, both before and after the enactment of the Mental
Capacity Act 2005. The connection between the capacity to contract a marriage and ability to
manage one’s property and person described in Park is severed in later English cases.
The English Family Court’s inherent jurisdiction to make a declaration regarding
capacity was invoked in 2004, before the enactment of the Mental Capacity Act 2005, but
Munby J. considered its implications in Re E. (an alleged patient); Sheffield City Council v. E. and
S.49 The issue of marriage as a contract like any other was considered. E. was intellectually
handicapped, and said to function at the level of a thirteen year old. She was in a relationship
with a man with a history of violence and sexual offending and the local authority, fearing for
her safety, sought a declaration that she lacked the capacity to marry. It was held that there
was a presumption of capacity to marry. The test was whether E. had the ability to understand
the nature of the contract of marriage, not the implications of a particular marriage50, however
repugnant the proposed spouse. The Court could not give consent to marriage on behalf of a
person unable to consent for themselves. Marriage was said to be:
… a contract formally entered into … the essence of the contract being an agreement
between a man and a woman to live together, to love one another as husband and wife,
to the exclusion of all others. It creates a relationship of mutual and reciprocal
In the Estate of Park [1953] 2 All E.R. 1411 at 1431.
Re E. (an alleged patient); Sheffield City Council v. E. and S. [2004] E.W.H.C. 2808 (Fam.).
50 Ibid. at para. 85: “The test is an ability to understand the nature of the contract of marriage, not the
implications of a particular marriage”.
48
49
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obligations, typically involving the sharing of a common home and common domestic
life, and the right to enjoy each other’s society, comfort and assistance.51
Munby J. did not regard the ability to manage one’s person and property as integral
to the capacity to marry, signalling that consent to marriage was not the same as consent to
any other kind of contract. Decision making was issue-specific: “The test is: does E have the
capacity to marry. If she does it is not necessary to show that she also has the capacity to take
care of her own person and property”.
The person’s best interests did not need to be considered; simply whether they could
make the decision to marry. The person they chose to marry was not an issue for the court:
“The court has no jurisdiction to consider whether it is in her best interests to marry”. The
law could be summarised in four propositions:
(i) It is not enough that someone appreciates that he or she is taking part in a marriage
ceremony or understands its words.
(ii) He or she should understand the nature of the marriage contract.
(iii) This means that he or she must be mentally capable of understanding the duties
and responsibilities that normally attach to marriage.
(iv) That said, the contract of marriage is in essence a simple one, which does not
require a high degree of intelligence to comprehend. The contract of marriage can
readily be understood by anyone of normal intelligence.52
Munby J. recognised that setting a high standard for capacity to marry would deprive
many people of the enriching experience of marriage: such an act would be discriminatory
and unfair.53 He did not think that a person needed assistance in making a decision to marry:
“Marriage is not something on which the average person needs to obtain either expert advice
or expert assistance …”.54
Ibid. at para. 132.
Ibid. at para. 68.
53 Ibid. at para. 144.
54 Ibid. at para. 87.
51
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English cases do not consider the character or motivations of the spouse, unlike
Australian and Canadian cases: the only matter to be considered is whether the person could
make a decision to marry.
Later cases in England decided under the Mental Capacity Act 2005 regarded the test
for the capacity to marry as being closely related, but not identical to the test for capacity to
consent to sexual relations. It should be borne in mind that in the nineteenth century and
early twentieth century when the early English cases were decided, the age of consent was
much lower than it is now, and there was no concept of marital rape as women were essentially
regarded as the property of their husbands, so there would have been no necessity to consider
whether a woman was capable of consenting to sexual relations. At present in England it is
an offence to have sexual relations with a person who lacks the capacity to consent such
activities, whether or not the parties are married.55
In 2007 the English High Court considered both the capacity to marry and the
capacity to consent to sexual intercourse in Local Authority X v. M.M. and K.M.56 The Mental
Capacity Act was not yet in force, so the court’s inherent jurisdiction was invoked as it had
been in Re E. M.M. was mentally ill and intellectually disabled and she was in a long term
relationship with K.M. who had a history of violence towards her. The local authority sought
a variety of declarations including that she could not manage her own financial affairs, litigate
or marry. She was held to have the capacity to consent to sexual intercourse because she
understood its nature and the risk of pregnancy and sexually transmitted infections, and
would be able to refuse to consent. She was not, however able to understand the nature of
marriage and therefore lacked the capacity to marry.
The Court considered the nature of the intervention in the light of Article 8 of the
Convention:
In this type of case the court is exercising essentially protective jurisdiction. The court
should only intervene where there is a need to protect a vulnerable adult from abuse
or the real possibility of abuse … And the court must be careful to ensure that in
rescuing a vulnerable adult from one type of abuse it does not expose her to the risk
55
56
Sexual Offences Act 2003, s. 30.
Local Authority X. v M.M. and K.M. [2007] E.W.H.C. 2003 (Fam.).
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of treatment at the hands of the State, which, however well intentioned, can itself end
up being abusive of her dignity, her happiness, and … her human rights. That said,
the law must always … protect the weak and helpless …57
Later it was said that there was a balance to be struck between protection and the happiness
of the person:
seeking a proper balance and being willing to tolerate manageable or acceptable risks
as the price appropriately to be paid in order to achieve some other good … in
particular … the vital good of the elderly or vulnerable person’s happiness. What good
is it making someone safe if it merely makes them miserable?58
The capacity to marry has also been linked with the capacity to decide to cohabit with
the spouse, and in P.C. v. City of York Council59 it was held that a woman with the capacity to
marry had the capacity to make the decision to cohabit with her husband who had a history
of sexual violence. The Mental Capacity Act 2005 was in force and it was held that a person is
not to be treated as lacking capacity merely because he makes an unwise decision (section
4(1)). The statute recognised a person’s autonomy and the Court of Protection had no
jurisdiction to intervene. Part of the marital contract involved cohabiting as man and wife: if
P.C. had the capacity to marry, she certainly possessed the capacity to decide to cohabit or
not.
The English High Court has considered that some people lack the capacity to marry:
In the case of S.M.B.C. v. W.M.P. and Others60 a Sikh man with intellectual disabilities sought
a divorce. The Court of Protection considered the issue of annulment of the marriage which
would avoid disgrace in the Sikh community of which he was a member. The man wished to
re marry, so the issue of capacity might re-arise. The High Court made interim orders
restraining him from marrying pending more comprehensive medical reports on the grounds
that he did not understand the nature of marriage because he had once proposed to a woman,
a stranger, who had asked him for directions at the bus stop, and had talked about paying his
wife five pounds to have sex with him.
Ibid. at para. 118.
Ibid. at para. 120.
59 P.C. v. City of York Council [2013] E.W.C.A. Civ. 478.
60 S.M.B.C. v. W.M.P. and Others [2011] E.W.H.C. B13 (C.O.P.).
57
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In 2012 in A Local Authority v A.K. and others a man who had suffered two severe brain
injuries was held to lack the capacity to marry because of his poor understanding of the nature
of marriage and his inability to remember the name of his wife to be, or whether he was
married or not.61
In Y.L.A v. P.M and M.Z the Court of Protection considered the case of a woman with
severe intellectual disabilities who had married and had a child.62 The local authority had
placed the family with a foster family because she was unable to care for the child. It was
alleged that the husband had only married her in order to secure a right to reside in the U.K.
It was held that she had neither the capacity to consent to sexual relations nor to consent to
marriage. She had to have carers present at all times to keep her safe and she could not be left
alone with her child. A declaration that she lacked the capacity to marry and have sexual
relations was made. The Court of Protection lacked the jurisdiction to nullify the marriage,
but the Official Solicitor could petition the courts on her behalf.
B. Canada: capacity, duress and consideration for children
In Canada the courts have considered the capacity to marry on the part of older adults
on a number of occasions. Despite the existence of legislation for the protection of those who
were unable to make decisions for themselves, such as the Ontario Substituted Decisions Act
1992, the courts continued to rely on the common law when considering the capacity to
marry, as marriage is a federal matter, not a provincial matter. Canada did not ratify the
Convention on the Rights of Persons with Disabilities until 2011 and the Canadian courts
continued to view marriage as a contractual matter after that.
In 1998 in Banton v. Banton63 the Ontario Supreme Court considered the case of an
elderly man aged 88 who married a woman of 31 who was a waitress at the nursing home
where he resided. After his death his children sought a ruling that the marriage was void due
to his lack of capacity to marry, and that he lacked the capacity to make a new will in favour
of his wife. The issue of undue influence on the part of his wife was also considered. The court
held that Mr Banton did have the capacity to marry, and that the burden of proof was on
A Local Authority v. A.K. and Others [2012] E.W.H.C. 1329 at para. 51.
Y.L.A. v. P.M and M.Z. [2013] E.W.H.C. 4020 (C.O.P.).
63 Banton v. Banton CanLII 1998 14926 (O.N.S.C.).
61
62
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those attacking the validity of the marriage: it had not been discharged. The evidence was
that Mr Banton had wanted to marry his new wife and that he had never regretted the
marriage. He was a “willing victim” and obtained the benefits of care and companionship.64
The judgement considered the issue of the ability to manage personal and property affairs in
relation to the capacity to marry and concluded that an inability to manage both personal and
property affairs may indicate an inability to contract a marriage; an inability to manage
property affairs alone does not. The court did not accept that a finding of incapacity to manage
property as defined by the Substituted Decisions Act 1992 was sufficient to establish incapacity
to marry.
Marriage does of course have an effect on property rights and obligations, but to treat
the ability to manage property as essential to the relationship would, I believe, be to
attribute inordinate weight to the proprietary aspects of marriage, and that would be
unfortunate. Elderly married couples whose property is administered for them
continue to live comfortably together ... I see no reason why this state of affairs should
be confined to those who married before incapacity to manage property supervened.65
In Alberta in 2000 in Barrett v. Dexter66 the court considered the validity of a marriage
between a 93 year old man with Alzheimer’s and a 58 year old woman. Mr. Barrett’s adult
children had not been invited to their wedding. The court accepted the evidence of three
medical experts that he lacked the capacity to marry. One of the experts, Dr. Molloy, set the
threshold higher than either the British or Canadian courts had done: he stated the test for
the capacity to marry was that the person should understand the nature of the marriage
contract (he did not elaborate on this), the state of previous marriages, one’s children and how
they may be affected. This much more stringent test was approved by the court and used in
subsequent cases.
Dr. Molloy did not expand on how the person could show that they had an
understanding of the marriage contract or the effect on their children. Some people would be
childless, so the test could not be universally applied. He did not explain why this should be
part of the test for capacity to marry. A younger person wishing to remarry after bereavement
or divorce is not obliged to show that they understand the effect on their children before
Ibid. at para. 139.
Ibid. at para. 157.
66 Barrett v. Dexter 2000 A.B.Q.B. 530.
64
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marrying. The effect on their children may be completely unknown at the time the marriage
is celebrated. The emotional effects on adult children would be unquantifiable, while the
financial effects in terms of benefits under a prior will would be somewhat easier to quantify,
and seem to have caused the litigation in some of the Canadian cases.
The test was approved in the 2003 case of Feng v. Sung Estate67 by the Ontario Superior
Court. It was held that an elderly man dying of cancer was the victim of duress and undue
influence on the part of his former carer: he was afraid she would leave him if he did not marry
her. The court concluded that Ms Feng had caused him not to tell his children of their
marriage or invite them to the ceremony, which was held to be further evidence of duress.68
After his death the wife sought a share of his estate, while his children sought to have the
marriage declared void.
The court held that if the undue influence and duress had not operated, the marriage
would be invalid because Mr Sung lacked the capacity to understand the nature of marriage:
He had attempted to arrange a pre-nuptial agreement which was thwarted by his fiancée.
It was held that he did not understand the nature of the marriage contract as he did not realise
that the agreement had to be executed by both spouses to make it legally effective. His fiancée
had visited his lawyer and cancelled the agreement and taken back his cheque. He had
nevertheless transferred $30,000 to her account as part of the agreement, but did not know
that it was never executed until one of his adult children told him. He then gave his son a
power of attorney so that he could transfer some of his assets to his children. The finding that
that Mr Feng did not understand the contract of marriage seems remarkable given that his
actions indicated that he understood the contract of marriage very well: he clearly did not
want his wife to control his estate; or deprive his children of their share of it when he died.
The ability to make a decision to marry has, in this case, been conflated with an
understanding of the legal procedures involved in executing a pre-nuptial agreement.
Many people with the capacity to marry might be unaware of the procedure, and would be
reliant on advice from their lawyer on this matter.
The Canadian courts’ use of the more stringent test for capacity to marry may reflect
increasing judicial awareness of predatory marriages. The finding of incapacity was upheld
67
68
Feng v. Sung Estate 2004 CanLII 2420 (ON.S.C.).
Ibid. at para. 65.
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on appeal and the Court saw no reason to re-visit the issues of duress and undue influence.69
The secrecy surrounding the wedding ceremony and the exclusion of close family seems to
have been an important factor; possibly it is used as a marker of failure to consider the effect
of the marriage on the children. It may well indicate entirely the opposite: a couple planning
to marry despite the objections of their children may consider that inviting their children to
their wedding would be upsetting to all parties, and simply decide to marry very quietly.
In 2014 in British Columbia in Scott-Ross v. Potvin70 the Superior Court considered
the case of an elderly man who married a neighbour after a three year friendship. She was
younger than he, neither of them had been married before and she was described as
“moderately wealthy”. The husband, who suffered from mild dementia and anxiety had been
able to instruct and seek advice from his lawyers and accountants both before and after his
marriage. He was later admitted to hospital where he died. His wife had cared for him,
arranging doctors’ visits, liaising with home care services, cooking meals and driving him to
the shops both before and after the marriage. His niece and nephew, the original beneficiaries
of his will, challenged the validity of the marriage and his subsequent will, on the grounds
that he lacked the capacity to marry and on the grounds of undue influence on the part of his
wife. It was held that marriage was “akin to a contractual relationship”71 and there was a
presumption that the marriage was valid which could only be displaced by:
very cogent evidence … which must clearly identify features of the person’s decision
making powers that would establish that the person did not understand the simple
promises made and given at the time.72
The plaintiffs failed to establish this, or that the deceased was unduly influenced by
his future wife. She did not threaten him with abandonment if he did not marry her and there
was a failure to demonstrate that he did not enter freely into the marital relationship, much
less “meet the high test necessary to annul the marriage”.73 Like the man in Park the deceased
sought companionship and security in his old age, and offered his wife financial security in
return. It was not a predatory marriage like the one described in Feng v. Sung: the parties had
been friends, and the wife had never been a paid carer, nor was she impoverished.
Feng v. Kam Yuen Sung Estate 2004 CanLII 35080 (ON.C.A.).
Scott-Ross v. Potvin, 2014 B.C.S.C. 435.
71 Ibid. at para. 40.
72 Ibid. at para. 50.
73 Ibid. at para. 234.
69
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There was a tension between preserving the husband’s personal autonomy and his
right to choose how to spend the balance of his life against the possibility that he did not
understand how marriage affected his legal status or contractual obligations.74 The fact that
he sought appropriate advice on a number of occasions; the fact that his doctors did not
consider him unable to form the intention to marry; and the nature of his relationship with
his wife led the Court to decide in favour of his autonomy. Both were childless, so part of the
test in Feng and Barrett could not be applied. The husband’s niece and nephew resided in
England and he had had little contact with them for many years.
In Canada marriage is regarded primarily as a contract. The courts have usually
chosen to protect the person, or their estate, rather than uphold their autonomy when
presented with evidence that the marriage was predatory or exploitative.
C. Australia: the effect of the marriage ceremony
The Family Court in Australia has considered the capacity to marry on the part of the
cognitively impaired on a number of occasions, usually in the context of older adults.
Marriage is governed by the Marriage Act 1961, and section 23(1) and section 23B(1) provide
that a marriage is void where “… (d) the consent of the parties was not real consent because:
… (iii) the party was mentally incapable of understanding the nature and effect of the
marriage ceremony”.
The phrase “nature and effect of the marriage ceremony” has attracted judicial
comment and would initially appear to set a particularly high threshold for the capacity to
marry as few people could claim to fully comprehend all the effects of a marriage ceremony.
In Marriage of Brown; re Dunne75 McCall J. considered the level of understanding
required to marry. He considered the test in Park, but used a slightly different one. The case
concerned an 82 year old man with dementia who had been in a de facto relationship with his
wife for 15 years. About 9 months before the marriage he had been admitted to hospital for
care. He did not recognise his daughters, but was able to recognise his wife. Marriage, to
them, did not involve living together because of his need for nursing care. Mr. Brown
74
75
Ibid. at para. 187.
Dunne v. Brown (1982) 60 F.L.R. 212.
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understood that he was getting married, and understood the nature of the marriage ceremony
as it applied to him and the particular person he married. The specific nature of the marriage,
rather than the general requirements of marriage were considered in that case. The marriage
served to formalise a longstanding relationship and there was no suggestion that Mrs. Brown
had formed a relationship with him in order to gain financially from it. There was no change
in their relationship or situation, and no new responsibilities were undertaken. He was held
to have the capacity to marry. This decision contrasts with that of Munby J. in E where it
was held that the person need only have an appreciation of the nature of marriage in general,
and the particular marriage and the other party’s suitability as a spouse need not be
considered.
In 2003 the Australian Family Court considered the test for the capacity to marry in
A.K. v. N.C.76 where the couple had been married for many years and then divorced but
continued have a relationship and lived in adjoining houses. The wife was admitted to a
nursing home with dementia and was regularly visited by her former husband. He removed
her from the nursing home and they married again. She was under guardianship at the time.
Her niece and next friend sought to have the marriage declared void because of her lack of
capacity. The presumption of capacity meant that the applicant had to prove on the balance
of probabilities that the wife lacked the capacity to marry at the time of the marriage.
Chisholm J. rejected the idea that the person should have a detailed understanding of the legal
consequences of marriage: “It is clear from the authorities that the law does not require a
person to have such a detailed and specific understanding of the legal consequences. Of course
if there were such a requirement few, if any marriages would be valid”.77
Chisholm J. considered Park and Marriage of Brown and acknowledged there could be
two tests for the capacity to marry: a general understanding of marriage and its consequences,
or an understanding of the specific consequences of the marriage for the person whose consent
was in issue. It was unnecessary to rule on whether there was an inconsistency between the
two approaches.78
After hearing extensive medical and non-medical evidence regarding the wife’s
dementia, he held that the wife understood marriage in general, and the consequences for
A.K. v. N.C. [2003] Fam. C. 1006.
Ibid. at para. 21.
78 Ibid. at para. 29.
76
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herself. She knew who her husband was; she wanted to leave the nursing home and live with
him; and she expressed positive feelings towards him. The validity of consent did not include
a requirement that the party understood the legal consequences of marriage in relation to
inheritance or property matters79, in contrast to the ruling in Feng.
In 2007 in Babich v. Sokur80 the son of a woman who suffered from dementia and who
had married her former lodger sought a declaration that the marriage was void due to her
lack of ability to consent to it. Mrs. Babich was a Ukrainian migrant whose first husband’s
friend had brought Mr. Sokur to lodge at a flat attached to her house in 1998. Mr. Sokur had
known the couple for some ten years before this. Mr. Babich had been admitted to a nursing
home by the time Mr. Sokur came to lodge there. When Mr. Babich died he moved into the
main house. He was 15 years younger than Mrs. Babich.
In 2002 Mrs. Babich’s son and his family became concerned about her deteriorating
mental state, and by 2004 she was unable to care for herself, did not wash or change her
clothes, and suffered from forgetfulness and paranoid delusions that she was being robbed by
her family. They had repeatedly sought to have her mental state assessed but she did not
attend the appointments. Her son sought guardianship of his mother, and then discovered
that she had married Mr. Sokur. No family members had been present and the two witnesses
at the wedding had not met her before. Mr. Sokur attempted to sell Mrs. Babich’s house and
she complained that he did nothing and spent her money. When she appeared before the New
South Wales Guardianship Tribunal, Mrs. Babich claimed that she was not married.
The court appointed two experts to assess her capacity to marry: one thought she did
have the capacity and the other thought she did not. It was held that she did not have the
capacity to marry, because although she might have had a general understanding of marriage
she was incapable of applying that knowledge to herself and her own situation:
It is not necessary in these proceedings to decide how wide the test in subpara.
23B(1)(d)(iii) is, but only whether it applies to the wife. But it is in my view significant
that the legislation not only requires a capacity to understand “the effect” but also
refers to “the marriage” rather than “a marriage”. In my view taken together those
matters require more than a general understanding of what marriage involves. That
79
80
Ibid. at para. 169-173.
Babich v. Sokur [2007] Fam. C.A. 236.
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is consistent with consent in contract being consent to the specific contract with
specific parties, consent in criminal law to sexual intercourse being consent to
intercourse with the specific person, and consent to marriage being consent to
marriage to the specific person …
In this case the wife may have had a good understanding of what marriage is and
involves, but she was incapable of applying that in considering what marriage to the
husband would involve and in deciding whether to enter the marriage. She was
incapable of considering the effect of the marriage on her. She was mentally incapable
in that regard of understanding the effect of the marriage ceremony, and her consent
was not real.81
The marriage was declared void because of Mrs. Babich’s lack of ability to consent
to it. The judge was critical of the husband’s lack of care for Mrs. Babich and was in no
doubt concerning the exploitative nature of the marriage. The Court reiterated the
contractual nature of marriage,82 and did not consider the effect of the Convention on the
Rights of Persons with Disabilities, despite its ratification by Australia in 2008. Had they
done so, the State’s obligation to protect the disabled from abuse and the apparent lack of
free and full consent would have played an important role in the decision.
Like the Canadian cases the secrecy surrounding the marriage ceremony seems to
have caused concern. The husband’s lack of concern for Mrs. Babich’s welfare led to the
ruling that Mrs. Babich was unable to understand the effect of the that particular marriage
to that particular partner on her. She was apparently able to understand the nature of
marriage in general and would have the capacity to marry in England under the test in E.,
regardless of the unsuitability of her spouse, but the Australian Family Court struck the
balance between protection and autonomy differently. Many people marry partners who
appear to be unsuitable, for example marrying partners who have been violent towards
them and continue to be violent after the marriage, but this is not normally seen as
evidence of lack of capacity. The evidence in Babich was that the marriage was exploitative,
and the court opted to protect Mrs Babich from further exploitation and neglect, rather
than uphold her autonomy.
81
82
Ibid. at paras. 255-256.
Ibid. at para. 255.
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That trend was continued in Oliver (Deceased) v. Oliver83 where the validity of an
elderly man’s marriage to his former carer, aged 49, was impugned by his granddaughter
after she discovered that the will made in contemplation of his marriage disinherited his
children and grandchildren and left everything to his new wife. The husband suffered from
dementia due to a combination of alcohol abuse and Alzheimer’s and had suffered declining
cognitive abilities for many years, but especially in the year before his death. Two weeks
before his wedding, accompanied by his fiancée, he had obtained a certificate from his GP
confirming his soundness of mind to make a will, and had presented the certificate to his
solicitor (still accompanied by his fiancée) before making a new will in her favour. At trial
his GP resiled from the certificate declaring his soundness of mind, and no other evidence
was offered to support the view that the husband was capable of understanding the nature
and effect of the marriage on him.
Factual circumstances the Court took into account included: the age difference
between husband and wife; the fact that the wife had been the husband’s paid carer; the
financial disparity between the parties; and the motivation of the wife in facilitating the
change to his will in her own favour.84
Australian case law seems to occupy a middle ground between English and
Canadian tests of capacity to marry, requiring not only a general understanding of
marriage but of the effect of that particular marriage on the person. There does not seem
to be any requirement to consider the effect on adult children, or on property, but the
motivation and actions of the intended spouse play an important part in the balancing act
between autonomy and protection. In Babich and Oliver the Court chose protection; in A.K
v. N.C the Court chose the autonomy and happiness of the wife, while in Marriage of Browne;
re Dunne the Court chose to allow the formalisation of long standing relationship where
there was no evidence of exploitation or neglect and the essential elements of the
relationship were undisturbed.
The Australian cases, like the early English cases and the Canadian cases regard
marriage primarily as a contractual relationship, rather than a human right. Where there
is a suspicion of abuse or exploitation the emphasis is on protection rather than autonomy,
83
84
Oliver (Deceased) v. Oliver [2014] Fam. C.A. 57.
Ibid. at para. 212.
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while in England the autonomy of the person and their right to make unwise choices is
respected unless it can be shown that the person is very severely cognitively impaired.
IV – Assisted Decision Making (Capacity) Bill 2013
The Assisted Decision Making (Capacity) Bill, published in July 2013 is part of the
process of ratifying the Convention on the Rights of Persons with Disabilities. It will change
the law on the capacity to marry in Ireland by repealing the Marriage of Lunatics Act85, so that
wards would no longer regarded as automatically lacking the capacity to marry. The capacity
to marry would then be decided on a case by case basis. Wardship will no longer be an option
for the protection of those adults who lack the ability to make some decisions: instead various
categories of person will help the person make decisions and if this is still not possible a
decision making representative is appointed by the Circuit Court. The care of existing Wards
who are deemed to lack the ability to make important decisions will pass to the Public
Guardian.
Under section 30 of the Bill a registrar or the intending spouse of the person would
have the necessary standing to apply to the Circuit Court for a decision on whether the person
has the capacity to marry.86 The Bill does not permit the Court to consent to marriage on
behalf of the person, only to make a declaration as to the capacity of the person to consent to
marriage.
Section 8 of the Bill contains guiding principles, including a presumption of capacity
and the provision that making an unwise decision should not lead to the conclusion that the
person is unable to make a decision in respect of the matter. All practicable steps should be
made to help the person make a decision and the person should not be considered incapable
of making the decision unless these steps have failed. Such steps could include the use of
interpreters and materials in Braille as well as provision of information in an easily
understandable form. Any intervention should have regard to the dignity, privacy, bodily
integrity and autonomy of the individual, and should give effect to the will and preferences of
the person.
85
86
Assisted Decision Making (Capacity) Bill 2013, s.7.
Assisted Decision Making (Capacity) Bill 2013, s. 30 (4)(j)(i)-(ii).
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The ability to make an unwise decision is of particular interest to those who may wish
to marry: a poor choice of partner would not be regarded as a sign of lack of capacity.
Assessment of the capacity to marry under this new legislation would, if it followed English
judgements under similar legislation, use a test similar to that used in E.: the person would
have to understand the responsibilities of marriage in general, but there would be no
requirement to consider other persons such as children, or to consider the effect of that
particular marriage to that particular person. There would also be no requirement that the
person be able to manage their own property. Whether this test would be used remains to be
seen.
The Bill does not otherwise alter the law on marriage in Ireland, but by repealing the
Marriage of Lunatics Act 1811 and the Lunacy Regulation (Ireland) Act 1871,87 and introducing
a functional test of capacity, it may allow some people who are unable to marry by virtue of
being Wards of Court to marry, and may clarify the matter for those who are cognitively
impaired but are not Wards.
V – Conclusions
Ireland currently does not have a statutory test of mental capacity, but the common
law functional test has been used in Irish courts. The retention of nineteenth century
legislation such as the Marriage of Lunatics Act 1811 and the Lunacy Regulation (Ireland) Act
1817 are not compatible with either the Constitutional obligation to respect, defend and
vindicate the personal rights of the citizen, or modern international human rights law.
The enactment of the Assisted Decision Making (Capacity) Bill 2013 will mean that Ireland may
have to seek precedents in other jurisdictions for case law on the capacity to marry on the
part of those who are cognitively impaired.
Assessing the capacity to marry requires assessment of the evidence of capacity (or
lack of it) as well as a balancing act between protection of the individual, and protection of
the individual’s autonomy. It remains to be seen whether the courts would interpret the
protection of marriage as requiring an approach based on the autonomy of the individual
which would allow more people to marry; or an approach based on the protection of a
cognitively impaired individual which might restrict the number of persons able to marry.
87
Assisted Decision Making (Capacity) Bill 2013, s. 43(7).
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The Assisted Decision Making (Capacity) Bill 2013 is designed to enhance the autonomy of the
individual, and allow cognitively impaired individuals the same rights as others. If there is
doubt about the person’s capacity to marry the test should be whether the person understands
in general the meaning of marriage and its duties and responsibilities, which conforms to the
requirements of the Convention on the Rights of Persons with Disabilities.