Tackling predatory marriages – What are they!

With an ageing population, individuals hunting for elderly and wealthy spouses is on the rise.

Now that the number of predatory marriages has increased, the Law Commission is looking into possible legal gaps that so-called predators may be taking advantage of.

Currently, under English Law, an existing will is declared null and void by marriage or civil partnership. The Commission requested that this rule be re-examined this month in order to guard against predatory marriages.

A predatory marriage is one in which an elderly or weak party has been coerced into getting married, usually with the intention of obtaining financial advantage. Any previous will that was made before the marriage will automatically be null and void, meaning that the vulnerable party will pass away intestate (without a will), with the surviving spouse being entitled to the first £270,000 and half of the remaining estate, or the full estate if there are no living children or direct descendants.

It is evident how easily these regulations might be abused, which is why many are urging changes to wills in order to deter this harmful behaviour. However, it would be a mistake to just do away with this rule as the only route to reform. In fixing one problem, another far more serious problem will be created: a classic case of whack-a-mole, where problems keep popping up repeatedly.

Opening the doors to lawsuits

The majority of unions are not predatory. Incentives to marry still exist in our society, such as an unrestricted exemption from inheritance tax on all assets upon the death of a spouse. Spousal rights should not be subordinated in an attempt to end predatory marriages.

You can give assets to people other than your spouse, like adult children, without any limits. Naturally, you can just draft a new will after getting married, or even before; as long as it is prepared specifically with marriage in mind, it will still be valid. There are valid reasons behind prenuptial agreements as well.

Eliminating the requirement that a pre-existing will is nullified upon marriage, however, will unavoidably result in the distribution of assets in accordance with antiquated wills that do not take into consideration the new spouse or contemporary family structures or relationships. A lot of us take incredibly long times to finish personal tasks. When one partner fails to create a new will that provides for their remaining spouse or even children, the rule is crucial in protecting them.

Otherwise, if out-of-date wills continue to be valid, spouses’ claims against the beneficiaries of the will under the Inheritance Act of 1975 will sharply increase. I think the Law Commission made a mistake in estimating that the increase in litigation will only be slight. Furthermore, it is absurd to think that you should have to endure the psychological anguish of an inheritance dispute following the death of your spouse.

Revoking the rule also does not solve the problem of predatory marriages. Where there is no will to revoke, the predatory spouse would still take the lion’s share of the inheritance on intestacy. This would only be a sticking plaster on the more widespread and pressing issue of financial abuse, which we need to do more to tackle.

What other options are there?

The Law Commission seems to be recommending a “all or nothing” strategy, having ruled out the possibility of more flexible reforms.

Allowing people to choose to not follow the rule while drafting their will was one suggestion made. But doing so would mean making a decision in the dark, without knowing what lies ahead. Another proposal was to align the legal requirements for marriage eligibility with the acknowledged higher level for will-making ability. If a person retains capacity, we shouldn’t make it more difficult for them to exercise their rights to the freedoms enjoyed by others without disabilities, even if they do suffer from mental health issues like dementia.

Instead, we ought to be devising a customised resolution for relatives who learn after their death that their loved one was a victim of an abusive union. Enabling this exemption to the rule would offer a remedy after death, preventing those who prey on the weak from profiting from their own misdeeds.

There are already a number of options available if you learn that a loved one is being pushed to make a will or is getting married in a predatory manner. You have two options: the High Court or the Court of Protection, if there is grounds to think the person has lost capacity or is vulnerable and unable to defend themselves. The courts have the authority to halt marriages and make wills on behalf of individuals who are incapable of doing so. Eliminating spousal rights won’t address the underlying cause of predatory marriages, but we still need to exercise caution when it comes to protecting the weak and elderly.
We have cases involving conflicts involving predatory marriages. Although this is a complex legal matter, should you need help please do not hesitate to contact us.

If you would like any further advice, please do not hesitate to contact us:
3C Legal Limited
Tel: +44 (0) 1684 212147
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