Kimberly Whaley, Professor Albert Oosterhoff, and a number of other experts have written extensively on the issue of predatory marriages in Canada.1 They advocate for a statutory definition of capacity to marry in light of the limitations of our current common law test, which has not kept pace with modern developments in family and succession legislation.2
Like Canada, Australia has also struggled to balance the autonomy of vulnerable adults with the necessity of protecting them from predatory marriages. Unlike Canada, Australia has met this challenge with legislation that sets out the test for capacity to marry. However, Australia’s statutory test requires the marrying parties to have the mental capacity to understand the effect of the ceremony, not an understanding of the nature of marriage as an institution with all its consequences.3 Some scholars have suggested that the test would be more effective if it required the understanding of the property consequences of marriage, yet judicial comment in Australia suggests that few people, if any, truly understand all the consequences of marriage.4
In a recent decision out of New South Wales, Oliver v. Oliver, Australia’s Family Court declared that the April 2011 marriage between the 78 year-old Mr. Oliver (deceased), and the 49 year-old Mrs. Oliver was invalid.5 In doing so, the court reviewed the common law test for capacity to marry as it developed in England and the subsequent enactment of a statutory test in Australia. While the relevant legal tests differ from those applied in Canada, the facts, described below, are instantly recognizable as those of a predatory marriage.
Mr. Oliver had suffered alcohol-related capacity issues dating back to 2001. His first wife, Mrs. E, had also suffered under alcohol-related dementia, and in 2004, when the New South Wales Guardianship Tribunal considered the issue of Mrs. E’s guardianship, it held that Mr. Oliver lacked the capacity to manage Mrs. E’s affairs.
Mrs. E died in August of 2010. The Respondent attended the funeral as the daughter of a friend of Mr. Oliver, and she referred to Mr. Oliver as “Uncle.” Although Mr. Oliver’s daughter had made arrangements for Mr. Oliver to receive in-home care from a community organization, the Respondent later cancelled that service. Mr. Oliver had previously granted power of attorney to his son-in-law, but the Respondent made arrangements to assist the Mr. Oliver with his financial affairs. Mr. H had not begun to exercise his authority as an attorney for property, but in January and February of 2011, Mr. Oliver became increasingly suspicious of Mr. H and accused Mr. H of wanting to take all his money and control his life.6
From February 2011 to April 2011, the Applicant (Mr. H’s daughter and Mr. Oliver’s granddaughter), tried on numerous occasions to speak with Mr. Oliver, but the Respondent always answered the phone. The Applicant was rarely able to speak with him. However, in late February or early March of 2011, Mr. Oliver did come to the phone and told the Applicant he was getting married. The Applicant said, “How are you getting married? I didn’t even realize you had a girlfriend.” Mr. Oliver said, “Neither did I.”7 The Respondent then took the phone and advised that they would be married in June of 2011.8
In February of 2011, the Respondent took Mr. Oliver to see his general practitioner, Dr. G, who certified that the deceased was of sound mind and capable of making rational decisions about his affairs.9 A few days later, the respondent and Mr. Oliver attended the office of a solicitor and executed a will in contemplation of marriage (but not conditional on the marriage taking place) that named the solicitor his Executor and left his entire estate to the Respondent.10 The Respondent moved in with Mr. Oliver the next day.
The Respondent and Mr. Oliver were married in April of 2011, not June, as the Respondent has previously asserted to Mr. Oliver’s relatives. None of Mr. Oliver’s family were invited or notified; only the Respondent’s sister and parents attended. In her testimony, the Respondent had no explanation as to why Mr. Oliver’s relatives were not invited. The ceremony celebrant, Mrs. Q, gave evidence that Mr. Oliver stated he was pleased to be getting married.
In May of 2011, three weeks after the wedding, Mr. Oliver fell in his home, fractured his hip, and was hospitalized. The social worker, Mrs. U assessed Mr. Oliver and noted his dementia and vulnerability. Mrs. U spoke with the Respondent twice. The Respondent initially informed Ms. U that Mr. Oliver had no relatives other than a niece living out of state, and had no attorney for property. Mrs. U recommended that the New South Wales Public Trustee and Guardian be appointed as Mr. Oliver’s guardian of property. The New South Wales Trustee and Guardian as so appointed in August of 2011.
The Applicant commenced her application under section 113 of the Family Law Act 175 just prior to Mr. Oliver’s death for a declaration as to the validity of the marriage. She argued that Mr. Oliver was mentally incapable of understanding the nature and effect of the marriage ceremony as provided for in section 23B(1)(d)(iii) of the Act. The Act further provides standing to the Applicant to make the within Application – such standing is unavailable under Canadian legislation.11 Mr. Oliver died in September of 2011. The Respondent did not inform Mr. Oliver’s family.
The court had the benefit of an expert’s report who reviewed Mr. Oliver’s voluminous health records and provided an opinion, summarized by the court, as follows:
As to whether the deceased was capable of understanding the nature of the contract (marriage) that he was entering into, free from the influence of morbid delusions, upon the subject Dr Z says that is a difficult question to answer. There was clear evidence of long-standing cognitive impairment prior to April 2011, which may have influenced the deceased’s capacity in this regard. Dr Z notes:
… in relation to the specific issue of “morbid delusions”, information provided by his family suggests he was experienced delusions and paranoia through December 2010 into the New Year, including his belief sometimes that his first wife, [Ms E], was still alive and also his belief that Mr [H] was being too controlling of his money. Moreover, there is a long history documented in hospital notes of paranoid delusions and treatment for these, dating back to 2001, especially during times of delirium. As such, it is possible (but I cannot be certain) that [the deceased] was experiencing some degree of delusions around this time and that this might have influenced his thinking, especially if he had certain inaccurate beliefs about some family members and if he was being unduly influenced by them.12
The Court observed that the English common law test for capacity to marry had been supplanted by the statutory test in the Marriage Act 1961 (Cth), as amended, and noted the following:
On the face of it the English common law test and the Australian statutory test are different, particularly because of the Australian test requiring that for a valid consent a person must be mentally capable of understanding the effect of the marriage ceremony as well as the nature of the ceremony. …
In the 32 years since the legislative test has applied, there has not been a plethora of decisions of the Australian courts as to its interpretation. There are only 2 reported decisions that I was referred to and I located no others. … The current test of “mentally incapable of understanding the nature and effect of the marriage ceremony” was applied in both cases.
It is clear from the authorities that the law does not require the person to have such a detailed and specific understanding of the legal consequences. Of course if there were such a requirement, few if any marriages would be valid.13
…
The Court reviewed judicial commentary on Australia’s capacity to marry tests, and in particular, Justice Mullane’s application of authorities in Babich & Sokur and Anor, as follows:
… it is in my view significant that the legislation not only requires a capacity to understand “the effect” but also refers to “the marriage” rather than “a marriage”. In my view taken together those matters require more than a general understanding of what marriage involves [emphasis added]. That is consistent with consent in contract being consent to the specific contract with specific parties, consent in criminal law to sexual intercourse being consent to intercourse with the specific person, and consent to marriage being consent to marriage to the specific person.14
In Babich, Justice Mullane held that the vulnerable adult in question had a general understanding of “a” marriage, but she was incapable of understanding the effect her marriage would have on her.15
In Oliver, Justice Foster found that Mr. Oliver may have been aware that he was participating in a marriage ceremony to the Respondent, or at least some sort of ceremony with the respondent, but no further.16
Commentary
While many provinces and states have done away with the revocation–upon–marriage provisions in their succession or probate legislation, these new statutes are a small first step towards the development of a more cohesive statutory approach to the prevention of financial abuse through predatory marriages.17
Australian case law seems to suggest that a statutory test for the capacity to marry can be a useful tool in cases of elder abuse, but such statutory tests should specifically reference the marrying parties’ understanding of the property consequences of marriage. Nevertheless, the Oliver case illustrates the value of the capacity provisions in Australia’s Marriage Act. We are optimistic that the legislation in Ontario will eventually catch up with succession law developments in British Columbia and Alberta, and match or better the legislative test for capacity to marry in other commonwealth nations.
—
1. Kimberly Whaley et. al, Capacity to Marry and the Estate Plan (Aurora: Canada Law Book, 2010) at 70. http://www.canadalawbook.ca; Albert Oosterhoff, “Predatory Marriages” (2013) 33 Estates & Trusts Pensions 24.
2. Ibid.
3. Marriage Act 1961 (Cth) subsection 23B(1)(d); see also Jill Cowley, “Does Anyone Understand the Effect of ‘The Marriage Ceremony’? The Nature and Consequences of Marriage in Australia” [2007] SCULawRw 6; (2007) 11 Southern Cross University Law Review 125.
4. Cowley, supra note 132 at p. 170 – 171.
5. Oliver (Deceased) & Oliver [2014] FamCA 57, para 213 (cited to AstLII).
6. Ibid., at paras 39 and 40.
7. Ibid., at para 25.
8. Ibid.
9. Ibid., at para 73.
10. Ibid., at para 74.
11. Ibid., at paras 5 and 6; see also Oosterhoff, supra note 1.
12. Oliver, supra note 4, at para 185.
13. Ibid., at paras 244, 245, 246.
14. Ibid., at para 202, citing para 255 of Babich & Sokur and Anor [2007] FamCA 236 (cited to AustLII).
15. Babich, supra note 13, at para 256.
16. Oliver, supra note 4, at para 210.
17. See British Columbia’s Wills, Estates and Succession Act (“WESA”), which came into force on March 31, 2014, and Alberta’s Wills and Succession Act came into force on February 1, 2012.
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Written by: WEL Partners
Posted on: April 24, 2014
Categories: Commentary
Kimberly Whaley, Professor Albert Oosterhoff, and a number of other experts have written extensively on the issue of predatory marriages in Canada.1 They advocate for a statutory definition of capacity to marry in light of the limitations of our current common law test, which has not kept pace with modern developments in family and succession legislation.2
Like Canada, Australia has also struggled to balance the autonomy of vulnerable adults with the necessity of protecting them from predatory marriages. Unlike Canada, Australia has met this challenge with legislation that sets out the test for capacity to marry. However, Australia’s statutory test requires the marrying parties to have the mental capacity to understand the effect of the ceremony, not an understanding of the nature of marriage as an institution with all its consequences.3 Some scholars have suggested that the test would be more effective if it required the understanding of the property consequences of marriage, yet judicial comment in Australia suggests that few people, if any, truly understand all the consequences of marriage.4
In a recent decision out of New South Wales, Oliver v. Oliver, Australia’s Family Court declared that the April 2011 marriage between the 78 year-old Mr. Oliver (deceased), and the 49 year-old Mrs. Oliver was invalid.5 In doing so, the court reviewed the common law test for capacity to marry as it developed in England and the subsequent enactment of a statutory test in Australia. While the relevant legal tests differ from those applied in Canada, the facts, described below, are instantly recognizable as those of a predatory marriage.
Mr. Oliver had suffered alcohol-related capacity issues dating back to 2001. His first wife, Mrs. E, had also suffered under alcohol-related dementia, and in 2004, when the New South Wales Guardianship Tribunal considered the issue of Mrs. E’s guardianship, it held that Mr. Oliver lacked the capacity to manage Mrs. E’s affairs.
Mrs. E died in August of 2010. The Respondent attended the funeral as the daughter of a friend of Mr. Oliver, and she referred to Mr. Oliver as “Uncle.” Although Mr. Oliver’s daughter had made arrangements for Mr. Oliver to receive in-home care from a community organization, the Respondent later cancelled that service. Mr. Oliver had previously granted power of attorney to his son-in-law, but the Respondent made arrangements to assist the Mr. Oliver with his financial affairs. Mr. H had not begun to exercise his authority as an attorney for property, but in January and February of 2011, Mr. Oliver became increasingly suspicious of Mr. H and accused Mr. H of wanting to take all his money and control his life.6
From February 2011 to April 2011, the Applicant (Mr. H’s daughter and Mr. Oliver’s granddaughter), tried on numerous occasions to speak with Mr. Oliver, but the Respondent always answered the phone. The Applicant was rarely able to speak with him. However, in late February or early March of 2011, Mr. Oliver did come to the phone and told the Applicant he was getting married. The Applicant said, “How are you getting married? I didn’t even realize you had a girlfriend.” Mr. Oliver said, “Neither did I.”7 The Respondent then took the phone and advised that they would be married in June of 2011.8
In February of 2011, the Respondent took Mr. Oliver to see his general practitioner, Dr. G, who certified that the deceased was of sound mind and capable of making rational decisions about his affairs.9 A few days later, the respondent and Mr. Oliver attended the office of a solicitor and executed a will in contemplation of marriage (but not conditional on the marriage taking place) that named the solicitor his Executor and left his entire estate to the Respondent.10 The Respondent moved in with Mr. Oliver the next day.
The Respondent and Mr. Oliver were married in April of 2011, not June, as the Respondent has previously asserted to Mr. Oliver’s relatives. None of Mr. Oliver’s family were invited or notified; only the Respondent’s sister and parents attended. In her testimony, the Respondent had no explanation as to why Mr. Oliver’s relatives were not invited. The ceremony celebrant, Mrs. Q, gave evidence that Mr. Oliver stated he was pleased to be getting married.
In May of 2011, three weeks after the wedding, Mr. Oliver fell in his home, fractured his hip, and was hospitalized. The social worker, Mrs. U assessed Mr. Oliver and noted his dementia and vulnerability. Mrs. U spoke with the Respondent twice. The Respondent initially informed Ms. U that Mr. Oliver had no relatives other than a niece living out of state, and had no attorney for property. Mrs. U recommended that the New South Wales Public Trustee and Guardian be appointed as Mr. Oliver’s guardian of property. The New South Wales Trustee and Guardian as so appointed in August of 2011.
The Applicant commenced her application under section 113 of the Family Law Act 175 just prior to Mr. Oliver’s death for a declaration as to the validity of the marriage. She argued that Mr. Oliver was mentally incapable of understanding the nature and effect of the marriage ceremony as provided for in section 23B(1)(d)(iii) of the Act. The Act further provides standing to the Applicant to make the within Application – such standing is unavailable under Canadian legislation.11 Mr. Oliver died in September of 2011. The Respondent did not inform Mr. Oliver’s family.
The court had the benefit of an expert’s report who reviewed Mr. Oliver’s voluminous health records and provided an opinion, summarized by the court, as follows:
As to whether the deceased was capable of understanding the nature of the contract (marriage) that he was entering into, free from the influence of morbid delusions, upon the subject Dr Z says that is a difficult question to answer. There was clear evidence of long-standing cognitive impairment prior to April 2011, which may have influenced the deceased’s capacity in this regard. Dr Z notes:
… in relation to the specific issue of “morbid delusions”, information provided by his family suggests he was experienced delusions and paranoia through December 2010 into the New Year, including his belief sometimes that his first wife, [Ms E], was still alive and also his belief that Mr [H] was being too controlling of his money. Moreover, there is a long history documented in hospital notes of paranoid delusions and treatment for these, dating back to 2001, especially during times of delirium. As such, it is possible (but I cannot be certain) that [the deceased] was experiencing some degree of delusions around this time and that this might have influenced his thinking, especially if he had certain inaccurate beliefs about some family members and if he was being unduly influenced by them.12
The Court observed that the English common law test for capacity to marry had been supplanted by the statutory test in the Marriage Act 1961 (Cth), as amended, and noted the following:
On the face of it the English common law test and the Australian statutory test are different, particularly because of the Australian test requiring that for a valid consent a person must be mentally capable of understanding the effect of the marriage ceremony as well as the nature of the ceremony. …
In the 32 years since the legislative test has applied, there has not been a plethora of decisions of the Australian courts as to its interpretation. There are only 2 reported decisions that I was referred to and I located no others. … The current test of “mentally incapable of understanding the nature and effect of the marriage ceremony” was applied in both cases.
It is clear from the authorities that the law does not require the person to have such a detailed and specific understanding of the legal consequences. Of course if there were such a requirement, few if any marriages would be valid.13
…
The Court reviewed judicial commentary on Australia’s capacity to marry tests, and in particular, Justice Mullane’s application of authorities in Babich & Sokur and Anor, as follows:
… it is in my view significant that the legislation not only requires a capacity to understand “the effect” but also refers to “the marriage” rather than “a marriage”. In my view taken together those matters require more than a general understanding of what marriage involves [emphasis added]. That is consistent with consent in contract being consent to the specific contract with specific parties, consent in criminal law to sexual intercourse being consent to intercourse with the specific person, and consent to marriage being consent to marriage to the specific person.14
In Babich, Justice Mullane held that the vulnerable adult in question had a general understanding of “a” marriage, but she was incapable of understanding the effect her marriage would have on her.15
In Oliver, Justice Foster found that Mr. Oliver may have been aware that he was participating in a marriage ceremony to the Respondent, or at least some sort of ceremony with the respondent, but no further.16
Commentary
While many provinces and states have done away with the revocation–upon–marriage provisions in their succession or probate legislation, these new statutes are a small first step towards the development of a more cohesive statutory approach to the prevention of financial abuse through predatory marriages.17
Australian case law seems to suggest that a statutory test for the capacity to marry can be a useful tool in cases of elder abuse, but such statutory tests should specifically reference the marrying parties’ understanding of the property consequences of marriage. Nevertheless, the Oliver case illustrates the value of the capacity provisions in Australia’s Marriage Act. We are optimistic that the legislation in Ontario will eventually catch up with succession law developments in British Columbia and Alberta, and match or better the legislative test for capacity to marry in other commonwealth nations.
—
1. Kimberly Whaley et. al, Capacity to Marry and the Estate Plan (Aurora: Canada Law Book, 2010) at 70. http://www.canadalawbook.ca; Albert Oosterhoff, “Predatory Marriages” (2013) 33 Estates & Trusts Pensions 24.
2. Ibid.
3. Marriage Act 1961 (Cth) subsection 23B(1)(d); see also Jill Cowley, “Does Anyone Understand the Effect of ‘The Marriage Ceremony’? The Nature and Consequences of Marriage in Australia” [2007] SCULawRw 6; (2007) 11 Southern Cross University Law Review 125.
4. Cowley, supra note 132 at p. 170 – 171.
5. Oliver (Deceased) & Oliver [2014] FamCA 57, para 213 (cited to AstLII).
6. Ibid., at paras 39 and 40.
7. Ibid., at para 25.
8. Ibid.
9. Ibid., at para 73.
10. Ibid., at para 74.
11. Ibid., at paras 5 and 6; see also Oosterhoff, supra note 1.
12. Oliver, supra note 4, at para 185.
13. Ibid., at paras 244, 245, 246.
14. Ibid., at para 202, citing para 255 of Babich & Sokur and Anor [2007] FamCA 236 (cited to AustLII).
15. Babich, supra note 13, at para 256.
16. Oliver, supra note 4, at para 210.
17. See British Columbia’s Wills, Estates and Succession Act (“WESA”), which came into force on March 31, 2014, and Alberta’s Wills and Succession Act came into force on February 1, 2012.
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