The Law Commission published an update on its “Wills Project” a couple of weeks ago, building on its initial consultation piece back in 2017. The original consultation made a passing reference to predatory marriage. The supplementary paper has probed deeper into what is still a relatively new area of law.
What is Predatory Marriage?
The emphasis back in 2017 when the original consultation was published was on will making generally and its formalities, and a thought that the historic Wills Act 1837 needed to be brought up with the times (more so than has been the case through its various amendments introduced via secondary legislation).
The consultation was subsequently parked largely due to the pandemic, and a rise in associated issues in the wider wills and probate industry.
The supplementary paper now has delved deeper into the relatively new concept of “predatory marriage”, with an inquiry as to how it be combatted.
Predatory Marriage – a definition
Predatory marriage is the marriage by one person (the predator) to another (the victim) with a view to causing financial abuse (to the victim, or the victim’s natural beneficiaries).
Its features will typically include vulnerability on the part of the victim, and possible doubts over capacity (that is capacity to marry, but also capacity generally speaking). It may also involve an elderly, frail or infirm victim.
Its features will typically not include the marriage being explicable by reference to romance, love and affection between the two parties to it.
The consequences of a Predatory Marriage
By section 18 of the Wills Act 1837, a marriage (or civil partnership) serves to revoke any will made by the two parties to that marriage (save in circumstances where a will is made specifically in contemplation of marriage.
On the victim’s death, their estate passes in accordance with the intestacy rules (as set out in section 46 of the Administration of Estates Act 1925 (as amended)). Where the victim died, leaving children; the spouse (the predator) will inherit personal chattels, the statutory legacy (currently £322,000 as of 26 July 2023), and half of the balance of the estate. The children take the other half of the balance, and if more than one in equal shares.
The product of the intestacy rules has the potential to create a windfall for the predator. The windfall is clearly unethical, and unlikely to have been the victim’s testamentary wish.
What is more, the surviving spouse has first right to administer the deceased’s victim’s estate , under the priority afforded by the Non-Contentious Probate Rules 1987 (rule 22 thereof). Their status will extend beyond rights to inherit and administer; the predatory spouse also has the right to make decisions over burial, the deceased’s ashes, and even funeral arrangements. Again, this cannot have been the victim’s wish.
You may think that the victim’s capacity to marry could be proven, with the use of medical evidence. However, in circumstances where it could be proven on the balance of probabilities that the victim lacked the requisite capacity to marry, the outcome is unchanged. The marriage contract may become voidable, meaning that it could technically be set aside by an order of the court. The act of marriage itself though still serves to revoke any previous will made, and the intestacy rules would still apply.
What’s being done about Predatory Marriage?
Over the last decade, the awareness of predatory marriages has increased, largely following some deeply harrowing case examples, which sprung into wider public campaigns, such as “Justice for Joan”. This has prompted the Law Commission to incorporate it within its consideration of industry reforms. At present, it’s a case of “watch this space” until the will-making reforms reach Parliament for passing any primary or secondary legislation on the topic. Given the relatively early stage that these anticipated reforms are at, this is still likely to be some time from now.
What can the victim (or their family) do about it?
Despite the disadvantageous position that a predatory marriage creates for the victim and their family, there are still plenty of things that can be done to improve the situation, both before the marriage (perhaps where you are suspicious it may occur), or indeed after the marriage (both before the victim’s death and after). It is crucial that you take early expert legal advice from our Private Wealth Disputes team if you believe you or your family may be or have been affected by a predatory marriage.
If you have any questions relating to Predatory Marriage, please don't hesitate to get in touch with a member of our team.