Court Of Protection Grants Man Permission To Marry

The England and Wales Court of Protection (CoP) has granted a 28-year-old man permission to marry his fiancée, following questions about his capacity raised by his deputy. 

The gentleman has learning difficulties, and as a result of a road traffic accident during adulthood, in which he lost a leg, he was awarded £1.5million compensation. 

Adrian Mundell was appointed to manage the gentleman’s affairs, including his compensation, which has currently been spent on buying a home and being invested on the man’s behalf. 

The gentleman announced his intention to marry his fiancée, a lady whom he had met 3 years previously and who had moved into his home with her two children.  

Mr Mundell was concerned about this, especially when it came to the man’s finances. Although the gentleman had a will leaving his estate to his parents, this would be revoked, with his soon-to-be wife able to make a claim against his estate once they were married. 

Mr Mundell applied to the CoP for a declaration that the gentleman didn’t have capacity to marry. Citing that he had difficulty saying no and is easily persuaded, making him vulnerable and capable of being exploited. These claims were backed up by the man’s clinician. 

The Judge in the case, Mostyn J, did not agree with Mr Mundell’s application. Noting that the man had the capacity to make a will. He also agreed with a previous judgement delivered by Parker J in Southwark v KA. To the effect the “people can have the capacity to marry without needing to understand how financial remedy law works.” 

Mostyn J said:

“It would be inappropriate…to introduce into the test for capacity to marry a requirement that there should be anything more than a knowledge that divorce may bring about a financial claim. 

“To suggest that there is needed an appreciation of what the result of a financial remedy claim might be, would be to set the test for capacity far too high.” 

However, because the gentleman’s compensation claim for his accident was awarded to him to support his needs alone, Mostyn J added: 

“If this marriage happens and then later breaks down and a financial claim is made, then the scope of any claim…is necessarily going to be extremely limited. 

“There are numerous authorities in the books which have effectively emphasised the near-immunity of personal injury awards form a financial claim. Any claim by the wife would probably be limited to alleviating serious financial hardship and no more.” 

Mostyn J dismissed Mr Mundell’s application and granted the gentleman permission to marry his fiancée.  

However, he also suggested to P that he should execute a codicil to his will that it shall survive his marriage and be effective thereafter, thereby ensuring that his wife will not inherit his estate (Mundell v Name 1, 2019 EWCOP 50). 

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