A marriage will always revoke a Will – so anyone who marries (or marries again) would need to make a new Will, or the first £270,000 of their estate will go to their spouse if they are the first to die.
Under British Law it is not possible to annul a marriage once one of the couple has died, unless the marriage is bigamous or incestuous. It is not possible to annul a marriage after one party has died even if it was fraudulent.
When the couple go to give notification of marriage, they are supposed to have separate 45-minute interviews. We have spoken to many couples who say this did not happen when they were married.
At the moment, it’s almost impossible to prove that a marriage was fraudulent as no evidence is kept by the Register Office of what happened during the notification or during the ceremony. Once you’ve got the marriage certificate, that’s it!
Registrars are trained to look for forced marriage in its more common definition of one person being forced into it by the other, and sham marriage, for example for immigration purposes. They are not trained in how to assess mental capacity.
Register Offices have no obligation to check medical records before marriage to see whether either of the couple has a diagnosis of dementia, no matter how old they are.
Register Offices have no obligation to check whether there is a Registered Power of Attorney in place for either of the couple marrying, no matter how old they are.
One of the couple having a Power of Attorney in place, because they have been medically assessed as not having mental capacity to make decisions, is not a legal reason to stop a marriage.
The Mental Capacity Act 2005 states it should be assumed that someone has mental capacity unless it’s proved otherwise. The marriage ceremony is not very difficult to get through and requires a lot of repeating, without necessarily understanding!
The calling of the Banns dates back to the twelfth century, when everything was very local. They are just posted inside the register office. Why not publish them on the Internet, where anyone can find them?
In some countries there is an offence of Predatory Marriage, which seems more appropriate to our case than Forced Marriage.
The “bar” on mental capacity for marriage is set much lower than the “bar” for making a Will. But marrying annuls any existing Will. Therefore it’s possible for someone to have capacity to marry but not to make another Will that says what they want.
If it were possible to annul a marriage after one party’s death this still would not help – the marriage would have revoked the Will and the Will would stay revoked.