Marriage and vulnerable adults

Edward Bennett reviews the options for local authorities when it comes to forced marriage and vulnerable adults.

Popular images of ‘forced’ marriage typically relate to circumstances where teenagers or young adults have been or are being psychologically or physically coerced to marry, either at home or abroad, by their family.

The reality, more often than not, is significantly wider and can take many forms. Local Authorities, and their Adult Social Care teams in particular, need to be alive as much to the teenage scenario described above, as to the elderly individual ‘married’ to a carer who promptly moves in to live with him or her full time, or the severely disabled adult in their 20s ‘married off’ in circumstances where the underlying intention of the family is to secure a home and support network for him or her.

The law and practice relating to marriage and the vulnerable adult is as emotionally challenging as it is legally complex. Being in a marriage or civil partnership, aside from legally being a lifelong union unless nullified or dissolved, has profound legal consequences which are all relevant to safeguarding, such as issues related to immigration, inheritance, medical treatment and wills to name but four.

This article provides a bare bones overview as to how Local Authorities should approach the legal options open to them in circumstances where there is some concern that a vulnerable adult has been, is, or is at risk in the future of suffering from either physical, psychological, emotional or financial harm or exploitation arising out of their purported or proposed entry into a marriage or civil partnership. References in this article to ‘marriage’ apply equally to same sex marriage and civil partnerships. Criminal liability is not considered.

First steps

The key first step a Local Authority should take is to ask two questions:

1. What is the Local Authority’s immediate best interests objective ? Is it to:

(a) prevent a marriage or civil partnership taking place ?; or

(b) deal with a situation where a marriage or civil partnership ceremony has occurred ?

2. Is the Local Authority dealing with an individual who:

(a) lacks the mental capacity to contract a marriage or civil partnership?; or

(b) has or may have such capacity but is unable to exercise a free choice in relation to marriage or civil partnership on account of pressure from third parties ?

The answers to these questions will determine what legal action a Local Authority can take. If, for example, an individual is found to have mental capacity and make a particular decision, the court has no power to make orders in his or her best interests under the Mental Capacity Act 2005.

Capacity to marry

The relevant common law test (which survives the MCA 2005) for assessing whether an individual has capacity to marry is set out in two judgments of Munby J (as he then was), Re E (an alleged patient); Sheffield City Council v E [2005] 1 FLR 965 and X City Council v MB, NB and MAB (by his litigation friend the Official Solicitor) [2006] 2 FLR 968. In brief summary:

(a) Ask three questions:

(i) Does the person understand the nature of the marriage contract ?;

(ii) Does the person understand the duties and responsibilities that normally attach to marriage ?; and

(iii) Does the person have capacity to consent to sexual relations ?

(b) In relation to these three questions, bear the following in mind:

(i) The relevant question is whether a person has capacity to marry. This is distinct from the question of whether a person is wise to marry at all, or wise to marry a particular person.

(ii) 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. Further, a person must be mentally capable of appreciating that it involves the responsibilities normally attaching to marriage. It is not enough that someone appreciates that he or she is taking part in a marriage ceremony or understands its words.

(iii) See Singleton LJ in In the Estate of Park, deceased, Park v Park [1954] P 112 at 127 (x): “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 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.....” It goes without saying that under the modern law, all this applies equally to same sex marriage.

(iv) The test for capacity to consent to sexual relations is to ask: “Does the person have sufficient knowledge and understanding of the nature and character – the sexual nature and character – of the act of sexual intercourse, and of the reasonably foreseeable consequences of sexual intercourse, to have the capacity to choose whether or not to engage in it, the capacity to decide whether to give or withhold consent to sexual intercourse (and, where relevant, to communicate their choice to their spouse)?”

Options open to a local authority in advance of any marriage ceremony

1. Forced marriage protection order: ss.63A-S Family Law Act 1996

Can be backed by a power of arrest. Local Authorities can apply without notice.

‘Force’ includes coercion by threats or other psychological means. Safest route for Local Authorities is to assume that, even if there has been no coercion, if a person lacks capacity, they have been ‘forced’ to marry. Orders can include: General prohibitions on marriage ceremony; General prohibitions on removal from the jurisdiction; General prohibitions relating to passports/travel documents; Provisions relating to protection from violence/harassment; Any orders made can regulate or control conduct inside and/or outside England & Wales. For example, a court can require that the person to be protected be taken to, and allowed to be seen and interviewed by a member of the British High Commission or Embassy overseas.

2. Injunction under the MCA 2005 where a person lacks capacity to marry

S.48 MCA 2005 and r.82 of the COP Rules 2007.

3. Injunction under the inherent jurisdiction where a person has capacity but is at risk of being coerced

4. Always enter a caveat with the Superintendant Registrar against the issue of a certificate for the marriage of a named person and lodge the caveat before the certificate authorising the marriage (not the marriage certificate) is issued

S.29 Marriage Act 1949.

Options open to a local authority following any marriage ceremony

1. Forced marriage protection order

As above.

2. The ‘Non-Marriage’

In essence, where parties to a marriage have never attempted to comply with essential formal requirements, such as the requirement that the ceremony takes place in an approved place and is conducted by a registered person, the route to challenge the status of the arrangement is not by the presentation of a petition for nullity but to seek a declaration under the inherent jurisdiction that the ceremony did not create or amount to a marriage, see Keehan J in A Local Authority v SY [2013] EWHC 2535 (COP). The concept of a ‘non-marriage’ is controversial so take legal advice before pursuing this option.

3. Petition for Nullity

Consider this option where the formalities, either in England or abroad, have been complied with but the person concerned did not have the mental capacity to enter into a marriage at the material time.

The Local Authority cannot petition for nullity itself, but it can apply for a declaration under s.18(1)(k) MCA 2005 that it would be in a person’s best interests for a petition to be presented on that person’s behalf by a litigation friend. 

s.12(1)(c) Matrimonial Causes Act 1973 provides that a marriage celebrated after 31 July 1971 shall be voidable on the grounds that “either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise”.

However, amongst other matters, a court cannot grant a decree of nullity unless, per s.13(2) and (4) of the 1973 Act, it is satisfied that proceedings were instituted within 3 years from the date of the marriage or leave for the institution of proceedings after the 3 years period has been granted.

A court has a discretionary power to grant leave after the expiration of the 3 year period if: (a) it is satisfied that the petitioner has at some time during that period suffered from mental disorder within the meaning of the MHA 1983; and (b) it considers that in all the circumstances it would be just to grant leave.

However, it may not necessarily always be in a person’s best interests for a nullity petition to be presented to annul the non-consensual marriage.

4. Declaration that the marriage is non-recognised as valid under English law

Consider this option where a marriage took place abroad but one of the parties is domiciled in England & Wales.

Traditionally, the English court seeks to uphold and recognise foreign marriages where the parties have complied with local formalities. However, where one of the parties to the marriage is domiciled in England & Wales, the English court requires the English law to be satisfied so far as the ‘essential validity’ of the marriage is concerned.

‘Essential validity’ is not concerned with formal requirements (venue, registrar, etc) but fundamental issues such as age, bigamy, consanguinity and consent.

Consequently, the English court reserves the right not to recognise the validity of a foreign marriage where: (a) one of the parties was domiciled in England & Wales; and (b) applying the English rules as to consent, the person did not give a valid consent. 

Edward Bennett is a practising barrister at Field Court Chambers with a particular specialism and interest in the international aspects of family law and court of protection work (both welfare and financial).

Edward was formerly a solicitor and Legal Adviser to the Head of International Family Justice for England & Wales. Since January 2015, has been General Editor of the International Family Law Journal, the only practitioner journal dedicated to international family law and the international protection of incapacitated adults. He has recently spent time on secondment to the Adult Social Care team of a major London local authority.