Estate Planning

PREDATORY MARRIAGES: TOO EASILY ACCOMPLISHED?

By Hull and Hull LLP

 In my blog on August 26, 2010, I introduced the topic of predatory marriages and alluded that these marriages are, perhaps, too easily accomplished. I suggest that this may be the case because the test for capacity to marry, as stated in Banton v. Banton, is a very low one. In the Banton decision, the Honourable Justice Cullity held that the contract of marriage is a very simple one. Justice Cullity reached his decision by reviewing prior case law on the topic and, in particular, historical English jurisprudence dating back to the 1800's which held that marriage does not require a high degree of intelligence to comprehend. 

Given that it does not require a high degree of intelligence to understand the contract of marriage, it is not too surprising that the test for the capacity to marry is much less stringent than the test for the capacity to make a Will or manage property.

The test for the capacity to marry, in my view, leaves the door wide open for greedy opportunists to marry vulnerable individuals for the sole purpose of gaining access to their property. We do see marriages between individuals with significant age differences and, at times, the elderly spouse is clearly being taken advantage of by a younger opportunist. Further, there are times when the elderly spouse becomes isolated from friends and family and dependant on the very person who is exploiting him or her.

Tragically, the exploited spouse may be left without the financial ability to support herself as she ages. Alternatively, the children and grandchildren of the exploited spouse may feel the brunt of the impact of the marriage where, for instance, the operation of the Succession Law Reform Act means that Will of the marrying spouse is revoked upon the marriage.

I would argue that the test for the capacity to marry, which dates back to jurisprudence from the 1800's, is archaic in that it fails to acknowledge the very complex property rights that currently attach to marriage. In my view, and in light of the significant property rights at play, marriage should not be characterized as a simple contract. The test for the capacity to marry should, in my view, be broad enough to require that individuals understand the property rights that flow from marriage and the legal consequences related to marriage, including those that affect property.

How do we address this problem? There is, of course, potential for legislative reform. However, one would want to be careful that marriage does not become too heavily regulated.

What do you think?

Have a great day!

Kathryn Pilkington

Full post as published by Toronto Estate Law Blog on September 07, 2010 (boomark / email).