Voidable marriage: lack of capacity

can I get an annulment due to lack of capacity?

Yes, a marriage will be voidable if one or both parties lacked capacity to consent to the marriage. This means that the marriage can be annulled by the family court, but prior to an annulment, it will be considered legally valid.

what does it mean to lack capacity to marry?

A person is unable to consent to marriage if they lack the mental capacity to do so. The test to determine whether a person has capacity to marry is whether they understand the nature of the marriage contract and the duties and responsibilities usually attached to it, as per Sheffield City Council v E [2004] EWHC 2808 (Fam). This is not a high bar, and a party may have capacity to marry even if they do not have capacity to make other decisions, such as making a will or managing their property.  

The question of whether a person has capacity is issue specific, rather than ‘person specific’, meaning that the court’s determination of the suitability of the proposed spouse has no bearing on capacity. The court must consider ‘Does this person have capacity to marry’, not ‘Does person A have capacity to marry person B?’.

If you are concerned about a loved one’s capacity to consent to marriage, contact your local authority. For legal guidance on whether your marriage is voidable due to your own lack of capacity or your spouse’s, contact Vardags today for a free initial consultation with one of our expert divorce solicitors.

BOOK FREE CONSULTATION

Case Study - NB v MI [2021] EWHC 224 (Fam)

In this case, the court refused an application for a declaration that a Pakistani marriage was not valid in England and Wales due to the applicant’s lack of capacity.

The applicant had been involved in a car accident as a child, causing her a catastrophic brain injury which had a ‘serious impact’ on her mental health and cognitive functioning. She married the respondent in Pakistan under sharia law in 2013.

The question before the court was whether she lacked capacity to consent to marry at this time, and if so, whether the court had the power to declare that the marriage was not recognised as valid in the English jurisdiction, despite it being valid according to the law of Pakistan.

In assessing the first strand of this question, Mostyn J examined the existing caselaw and set forward “some straightforward propositions:

1. The contract of marriage is a very simple one, which does not take a high degree of intelligence to comprehend.
2. Marriage is status-specific not spouse-specific.
3. While capacity to choose to engage in sexual relations and capacity to marry normally function at an equivalent level, they do not stand and fall together; the one is not conditional on the other.
4. A sexual relationship is not necessary for a valid marriage.
5. The procreation of children is not an end of the institution of marriage.
6. Marriage bestows on the spouses a particular status. It creates a union of mutual and reciprocal expectations of which the foremost is the enjoyment of each other’s society, comfort and assistance. The general end of the institution of marriage is the solace and satisfaction of man and woman.
7. There may be financial consequences to a marriage and following its dissolution. But it is not of the essence of the marriage contract for the spouses to know of, let alone understand, those consequences.
8. Although most married couples live together and love one another this is not of the essence of the marriage contract.
9. The wisdom of a marriage is irrelevant.”

Although two of the three experts concluded that the applicant did not have capacity at the time of the marriage, Mostyn agreed with the expert who concluded that she did. He found that the two other experts had assessed the applicant’s capacity against a standard higher than the one required by law.

In understanding why Mostyn J found that the applicant had capacity to marry, it is helpful to look at the following excerpts from his judgment:

“Her lack of awareness of the difference between Islamic and English marriage; or the financial consequences depending on the contract; or her husband’s potential claims against her estate; or her husband’s proposed living arrangements say nothing at all about her capacity to marry. They may say quite a lot about her wisdom in getting married, but that is not the issue I have to decide……

The evidence given by the applicant satisfies me fully that she had capacity to marry. She was fully aware of the simple nature of the contract and that by an exchange of vows a union was created with mutual expectations of comfort, society and assistance. That she was not aware, and may not have been capable of being made aware, of the potential financial ramifications of marriage; of her husband’s intentions as to residence and work; of whether he would sign a prenuptial agreement; or of any potential claim he may have against her on divorce is nothing to the point.”

Notably, the applicant had previously been appointed a deputy by the Court of Protection due to her lack of capacity to manage her property and financial affairs. The deputyship was discharged in 2019 due to her increased independence and regained capacity to manage her property and financial affairs.