Capacity to Marry: protecting the vulnerable?

Getting married is invariably one of the happiest days of anyone’s life, but if one of the parties has not consented to the marriage – it’s a different story altogether. Unfortunately, in Ontario proving that one spouse lacked capacity to marry is not necessarily an easy task.

For a valid marriage, there are various legal requirements which must be met, otherwise the marriage will be invalid. One of the requirements for a valid marriage is that each party must have capacity to understand their decision to enter into marriage. They must also consent to marry – and the courts have said that ‘consent’ to marry does not necessarily equate to ‘capacity’ to marry.

What is capacity to marry?

In the marriage context, there is a relatively low threshold to satisfy this requirement for capacity to marry (there is a much higher threshold for testamentary capacity to make a will). It effectively requires only a minimal understanding of the nature of the marriage contract, and you do not have to be particularly intelligent to have this capacity to marry.

As it currently stands, the test for capacity to marry requires that the parties entering into a marriage contract understand the duties and responsibilities which a marriage creates – and have the ability to manage themselves and their affairs. If this cannot be satisfied, and an application is made to a court, the marriage will be declared void.

The law states that a person is incapable of managing property if they are not able to understand information “relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision”(section 6 Substitute Decisions Act).

What are the implications?

This low threshold for lack of capacity to marry means that marriages are not easily challenged on the basis of lack of capacity. It also highlights the fact that many people are particularly vulnerable to the risks of so-called predatory marriages; elder abuse; or coercion to marry when one party has dementia or other forms of brain disease or other illness affecting their capacity to understand what marriage is. In an aging population, the numbers of vulnerable people can only increase.

The existing meaning of ‘capacity to marry’ also means that as the law currently stands, the ability or a party to marry is tied in with the ability to manage themselves and their affairs. This could, perhaps inadvertently, effectively preclude from marriage individuals who have disorders such as autism, severe schizophrenia, and so on, who cannot manage themselves or their affairs – but who otherwise fully understand what marriage is and what it involves.

Until there are further rulings or changes in legislation on the issue of capacity to marry, the current law could undermine marriage to a certain degree. However, some comfort can be gained from the fact that those vulnerable to marriage exploitation from other individuals have a measure of protection – through the legal remedy can be challenging and time-consuming to secure.

How can we help?

If you have any doubts as to your capacity to marry, or the capacity of a loved one to marry, you must take urgent legal advice. If there are any concerns, for instance, about coercion, dementia, illness or other factors making the individual particularly vulnerable, get in touch with us.

Contact the experienced Family lawyers at Rogerson Law Group. We will take full details of the circumstances leading up to the marriage, and advise on the best steps we can take to protect yourself or your loved one.

Rogerson Law Group provides Divorce and Family law services in the entire GTA including Toronto, Scarborough, Mississauga, Vaughan, Brampton, Richmond Hill, Etobicoke, and Barrie and surrounding areas with offices located in downtown Toronto, Barrie, and an associated office Ottawa.

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