Resources & Insights

Predatory Marriages and the Capacity to Marry

Over the past several decades, with the passage of amendments to the Divorce Act, the incidence of divorce and remarriage has grown in frequency.

With ever increasing life expectancy and the graying of society there has been a rise in the number of reported cases of elderly individuals experiencing mental decline entering into marriage with younger spouses harbouring fraudulent motives.

Marriages of this nature have come to be termed as predatory marriages.

The act of marriage has significant potential impact on a person’s property, finances and estate.

Recent cases dealing with predatory marriages have determined that;

  • capacity to marry is more than a mayor appreciation of taking part in the marriage ceremony or a mayor understanding of the words invoked;
  • capacity to marry requires an understanding of the nature of the marriage contract;
  • to understand the nature of the marriage contract is to understand the duties and responsibilities that normally attached to marriage;
  • the contract of marriage is in essence a simple one, which does not require a high degree of intelligence to comprehend.

Given the significant legal property consequences attendant on entering into marriage including the revocation at law of pre-existing wills marriages there is an ongoing legal debate on whether statutory measures are necessary to address predatory marriage situations.

Written by Barrie Hayes