Capacity to Marry

16 October 2017

By Allison Curley


In order to carry out legal actions, a person must have the requisite capacity to do so. Different legal actions may require a person to meet a specific threshold of capacity. For example, there are different thresholds associated with entering into a contract, making a will, and retaining legal counsel. These legal thresholds are sometimes referred to as tests of capacity. The legal act of marriage requires a particular threshold of capacity.

When considering the test of capacity to marry, it is necessary to balance two equally important objectives. On the one hand, individuals with diminished capacity should be protected so that they are not exploited through marriage. One way in which a person could be exploited through marriage is that their financial assets could be subjugated. On the other hand, the autonomy and dignity of individuals should also be protected. People with diminished capacity due to illness, mental disability, or impairment are still be entitled to make certain decisions, and sometimes making a decision to get married, and acting on this decision, is possible for individuals with diminished capacity.

Some tests of capacity are set out in statutes; others have been developed in the common-law, and refined by various legal courts over the years. The capacity to marry is grounded in the common-law. In British Columbia, the leading authority on the test of capacity to marry is the English decision of Durham v Durham (1885) 10 PD 80 (Eng Probate Division). In this case, Sir James Hannen states that to marry, a person must have, “a capacity to understand the nature of the contract, and the duties and responsibilities which it creates.” (82) In BCLI’s publication, “Common-law Tests of Capacity,” it is noted that many Canadian jurists have cited the Durham decision when considering whether a married person had the capacity to enter into marriage.

Continue the Discussion at the 2017 Elder Law Conference

Emily Clough of Clark Wilson LLP is scheduled to present on “The Past, Present, and Future of The Common-Law Test for Capacity to Marry” on November 3 2017, Day Two of the 2017 Canadian Elder Law Conference. Emily’s presentation will consider the following:

  • The current state of the law on when a marriage will be void for incapacity
  • The low (historical) bar for the mental capacity to marry
  • Changing social conceptions of the institution of marriage
  • the future direction of the legal test for marital capacity

In anticipation of her upcoming presentation, we asked Emily to answer a series of questions about her interesting topic.

Allison: How did you become interested in the issue of capacity to marry?

Emily: Through an estate file, actually. We recently acted for the plaintiff in a case where we challenged a marriage based on the lack of mental capacity of one of the participants, and we were successful. This meant the marriage was deemed void ab initio, as if it had never happened. Because of how the test has developed, the threshold at which someone is considered capable of marriage is one of the lowest in the common law, so the case required a deep, and fascinating, dive into the jurisprudence to argue why that threshold hadn’t been met.


Allison: What particular topic in your presentation on capacity to marry are you the most excited to talk about?

Emily: I am most interested in the history behind the current common law test for when an individual is mentally incapable of marriage. Some of the early English cases in the area are still used as authorities today, centuries later, even though the idea of marriage has changed radically since that time. My presentation is partly about how those origins have affected the test as it stands today, and whether we need to re-think the test in light of how modern society views “the marriage contract”, female agency, and mental capacity.


Allison: Do you have an impression of how predatory marriages have changed over time?

Emily: There’s certainly a heightened public awareness of them. The term itself has changed meaning, also—some commentators conceive of a “predatory marriage” broadly, as any instance where an elderly or mentally infirm individual marries someone unscrupulous. Some take a narrower view, and see a “predatory marriage” as one where a caregiver becomes the beneficiary of a significant estate by coercing or influencing an elderly person into marriage. Either way, as Canada sees a demographic shift towards an older population, these concerns will only become more acute.


Allison: Which 2017 Canadian Elder Law Conference presentation are you looking forward to as a participant?

Emily: The presentation on the Carter decision, and the legislative implementation of its holding on physician-assisted death, is something I have a keen interest in. I think the principles of dignity and autonomy animate every area of elder law (this area perhaps more than any other), and I think this is a discussion the profession needs to continue engaging in. 


Emily will be speaking on “The Past, Present, and Future of The Common-Law Test for Capacity to Marry” at 1:10 on November 3.

The 2017 conference will feature two panels on medically assisted death. On November 2, 9:40-10:25 am, Dr. Heidi Oetter, Registrar and Chief Executive Officer, College of Physicians and Surgeons of British Columbia, and Dr. Ellen Wiebe, Clinical Professor, Department of Family Practice, University of British Columbia, will speak to physician experiences on the ground, including what lawyers need to know when they are advocating for clients who seek medical assistance in dying. On November 3, 9:40-10:40 am, Jay Aubrey, Counsel (Litigation), BC Civil Liberties Association, Maria Howard, Chief Executive Officer, Alzheimer Society of BC and Graham Webb, Executive Director, Advocacy Centre for the Elderly (Toronto) will discuss the controversial questions of whether true advance consent is possible in the context of medically-assisted death.




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