Website Cookie Policy

We use cookies to give you the best possible online experience. If you continue, we’ll assume you are happy for your web browser to receive all cookies from our website.
See our cookie policy for more information.

Practice Areas

More Information

thepartners@wrigleys.co.uk

Leeds: 0113 244 6100

Sheffield: 0114 267 5588

FOLLOW WRIGLEYS:

Court of Protection

Welcome to our Court of Protection blog featuring updates, guidance and news from the Wrigleys team.

Court of Protection Home

Lynne Bradey

Email: lynne.bradey@wrigleys.co.uk

Telephone: 0114 267 5584

Position: Partner

What does the Court of Protection have to do with my wedding?

A lot of people understand that the Court of Protection makes decisions about people’s finances.  The Court’s powers are much wider than this though. Where there is a dispute about whether a person has the mental capacity to marry, the Court of Protection will make a decision.  That is what happened in this case.

In the Judgment, the people who wanted to get married were called Name 1 and Name 2, but here for simplicity we will call them John and Jane. 

John and Jane were due to get married on Saturday 21st September. When the Court heard the case, that was only a few days away. 

John is 28 and has had learning difficulties from childhood. He was not able to manage his own finances and a professional deputy was appointed to look after those for him. He had an accident when working as a refuse collector, and lost a leg.  He received compensation for that. That compensation was designed to meet his needs but not anybody else’s. Part of the compensation was used to buy him a house and the remainder was invested.  His total estate was about £1,500,000. 

John did have capacity to make a Will and made one a couple of years ago leaving everything to his parents. He specifically said he did not want to benefit Jane. If somebody gets married after they have made a Will, that Will is no longer valid. The Judge suggested it would be a good idea for John to update that Will. 

John’s deputy was worried that he didn’t have the capacity to get married.  John and Jane have been together for about three years. Jane gave up a Council tenancy and moved into John’s home with her two children.  The Court looked at the test for capacity to marry.

The deputy had concerns about John’s financial understanding of the marriage. John had said on more than one occasion to the deputy and his case manager that he didn’t want to proceed with the marriage and that he wanted Jane to leave his property but he was scared of consequences that might result.  John then said he didn’t want Jane to leave.  The case manager’s evidence was also that he had said the relationship was so so, he had proposed to Jane because she had asked him, that the only reason he gave for getting married was that he wanted to be happier and that he struggled to understand the legal and financial implications of marriage and divorce. 

A clinical neuropsychologist assessed John. He said “John is easily persuaded. He has difficulty saying no by his own admission. His reasoning is impaired. He is very vulnerable and would be open to being exploited. Grave concerns were expressed by almost all others about his ability to understand the ramifications [possibly] of this decision. He has not thought through the long term implications and possible outcome.”

John wrote a letter to the Judge saying why he wanted to get married, showing everyone that they were committing their love to one another and being able to settle down as a family. 

The Judge spoke to John and asked him what his understanding of the marriage contract was.  He said that it was a relationship that would endure in sickness and in health, that it involved a commitment to each other and it involved becoming a family.  He said that if he got divorced, he understood that his finances would probably be halved and that he would go to a lawyer.  He thought he would probably have to go and live with friends and wasn’t sure how a divorce would impact on his financial ability to look after himself.

The Judge felt on the evidence that John did have the capacity to marry. 

Comment

The deputy’s concerns about the marriage are understandable.  The Court considered the decision of Munby J in Sheffield City Council v E and F in 2005.  In that, the Court made it clear that it wasn’t exercising a best interests jurisdiction on whether it is in the best interests of somebody to marry, but rather was making a decision about the capacity of the person to marry anybody. To be able to have capacity to marry, a person needs to understand the nature of the marriage contract and the duties and responsibilities that normally attach to marriage.  The Court said “the duties and responsibilities that normally attach to marriage can be summarised as follows: Marriage, whether civil or religious, is a contract, formally entered into. It confers on the parties the status of husband and wife, the essence of the contract being an agreement between a man and a woman to live together and to love one another as husband and wife, to the exclusion of all others. It creates a relationship of mutual and reciprocal obligations, typically involving the sharing of a common home and a common domestic life and the right to enjoy each other’s society, comfort and assistance.”

The Judge in this case didn’t feel that living together was a necessary part of the duties and responsibilities of marriage. 

The Judge was clear that it would be inappropriate and “arguably dangerous” to change capacity to marry to include the potential claims that might come about on divorce.  John would need to understand that divorce might bring about a claim but the Judge felt that expecting him to work out what that claim might be would set the bar too high.

The Judge did make the point though that any claims should be limited given that all of John’s money comes from a personal injury compensation payment. 

There is a real tension with capacity to marry.  On the one hand the Court does not want to set the bar too high because that would stop people from entering into marriage.  The financial implications of marriage though can be very far-reaching. That can be especially difficult where somebody has capacity to marry but not the capacity to enter into a pre-nuptial agreement.  In John’s case he was asked to enter into one but did not want to so the Court did not look at that particular point. 

11 Dec 2019

General Election 2019: what are the implications for employment law?

Election manifestos promise key changes to employment law provisions in the UK.

06 Dec 2019

The Brexit Party Manifesto 2019

The Brexit Party's Manifesto includes only two pledges in relation to tax.

05 Dec 2019

The Green Party Manifesto 2019

We look here at the Green Party's key tax pledges in their proposal for a 'Green New Deal'.