When a person loses mental capacity, they cannot legally make certain decisions and this can include lifestyle decisions such as who to live with, and whether to marry. In PC and NC v City of York Council [2013] EWCA Civ 478, a woman with learning difficulties wanted to live with her husband who had a previous conviction for sexual offences, and the court had to determine whether she had capacity to make this decision herself. The legal test for capacity to cohabit was analysed and the court accepted that it be updated so as to take into account the personal characteristics of the proposed cohabitee. In this case, notwithstanding the man's previous convictions, the court decided that the woman had capacity to make her own decision.
As the law stands, however, the legal test for capacity to marry does not take into account the personal characteristics of the proposed spouse, only whether the person in question understands the general nature of marriage. This could result in a decision that does not adequately protect the vulnerable person concerned.
In this article which first appeared in the September 2013 edition of PS Magazine, the magazine of the Law Society's Private Client Section (www.lawsociety.org.uk/privateclient), partner Ann Stanyer and senior associate Victoria Mahon de Palacios discuss the York case and why the law on capacity to marry should be reformed.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.