Predatory Marriages.

“Predatory marriage” is a non-legal term commonly used to describe those marriages which take place where one of the parties to the marriage did not validly consent to it, whether because of duress, mistake, unsoundness of mind or otherwise.  

Both parties to a marriage need to have the necessary mental capacity to marry. A predatory marriage can be used to describe a marriage where one of the parties did not have the necessary mental capacity to consent to it, owing to unsoundness of mind which may have a variety of causes, including a mental illness, or a disease such as Alzheimer’s. The “predator” may have deliberately taken advantage of their victim with a view to financial gain.  

Two main legal problems can arise in the context of predatory marriages. The first is that marriage revokes a will (section 18 of the Wills Act 1837). This means that any pre-marriage will made by the victim, perhaps benefitting their children and family, is revoked and can lead to an intestacy, resulting in the predator automatically inheriting all, or a substantial part, of the victim’s estate. It can also mean that the predator will be put in control of the victim’s funeral, including their burial/cremation arrangements. Funeral wishes that may have been included in the victim’s will, or expressed verbally to family members, can be overridden by the predator.  

The second problem is that, although a predatory marriage can be annulled, any annulment is prospective rather than retrospective. This is because the Matrimonial Causes Act 1973 states that a predatory marriage is voidable, rather than void. A marriage which is voidable under the 1973 Act always revokes an earlier will of a party to the marriage, whether or not the marriage is subsequently annulled, because the annulment of a voidable marriage is not retrospective in effect and there was therefore a valid marriage for the purpose of revoking any prior wills. Therefore, even if it could be proved that the victim had not properly consented to the marriage because of unsoundness of mind that would not affect the revocation of the prior will because the marriage is treated as subsisting up until the date when the decree of nullity is made. It is also the case that a voidable marriage cannot be annulled after the death of one of the parties to it and a third party cannot challenge a voidable marriage (only one of the parties to the marriage can seek a decree of nullity in relation to that marriage whilst they are both still alive).  

It is possible that a new will can be executed but this can only be arranged if the victim is still alive. If the victim is still alive, it may be possible for a statutory will to be made for the victim by the Court of Protection.  

Interestingly, up until 1971, lack of consent made a marriage void rather than voidable. This was changed with the passing of the Nullity of Marriages Act 1971, and subsequently re-enacted in the Matrimonial Causes Act 1973. The legal effect of a voidable marriage on a pre-existing will may or may not have been appreciated by Parliament in 1971 but unless and until the law is changed, voidable marriages will continue to revoke wills.