Mr Adrian Stuart Mundell v (Name 1)

Judge: Mostyn J

Citation: [2019] EWCOP 50


In this case, Mostyn J was asked to consider at some speed (the proposed marriage being three days hence) whether Name 1 (“X”) lacked capacity to marry Name 2 (“Y”) in circumstances where X’s property and affairs deputy was concerned that X did not understand the financial implications of marriage.

X was born in Christmas Eve in 1990 and was 28 years old. From childhood he has suffered from learning difficulties.  A property and affairs deputy was appointed to act, in particular because he had been awarded a substantial sum by way of compensation by virtue of a road traffic accident when he lost a leg while working as a refuse collector.   The award of damages was carefully calculated to meet his needs, and his needs alone. Part of the award had been used to purchase a home and the remainder has been invested on his behalf.

X and Y began their relationship approximately three years previously, since when she had moved into his home with her two children, now aged seven and sixteen. In so doing, she relinquished a council property, of which she had been a tenant for about 12 years.

X was considered to have testamentary capacity to make a will, and in October 2017 he had made a will leaving his estate to his parents and he specifically indicated he did not want to benefit Y.   That will would be revoked if he were to marry, although Mostyn J noted that it would be open to him before the marriage, to execute a codicil to his will which provided that the will shall survive his marriage and be effective thereafter.  Mostyn J noted (at paragraph 7) that:

  • One of the immediate counterintuitive problems that I have to face is that I am being asked to declare today that I have, on an interim basis, reason to believe that [Y] does not have the capacity to marry whilst, at the same time, to accept that he had the capacity to make a will in 2017 and has the capacity today to execute the codicil that I have mentioned. It would be surprising if the degree of mental capacity that is needed to execute a will is in fact less than the degree of mental capacity that is needed validly to contract a marriage.

Mostyn J suggested that it was in his interests, although it was not part of the decision he had to make, that X should execute a codicil to his will to that effect prior to the wedding, if Mostyn J permitted the marriage to proceed.

In accordance with the relevant case law on capacity to marry, Mostyn J considered whether X understood: (a) the nature of the marriage contract and (b) the duties and responsibilities that normally attach to marriage. In respect of (b), Mostyn J disagreed with Munby J in Sheffield City Council v E and S [2005] 2 WLR 953 that the essence of marriage is for two people to live together and love one another. While recognising that this is a common expectation, Mostyn J observed (at paragraph 14) that:

  • There are plenty of examples, both in the distant past and more recently, of marriage being created where the parties like each other could not be said to love each other: where their relationship is one of platonic friendship rather than one of passion. Moreover, there are plenty of examples in this modern age of parties marrying where they do not share a common home or a common domestic life but, nonetheless, their marriage is well and truly a marriage.

Instead, Mostyn J focussed on whether X understood that his marriage could have financial consequences. In this regard he observed (at paragraph 31) that:

  • it would be inappropriate and, indeed, arguably dangerous to introduce into the test for capacity to marry a requirement that there should be anything more than a knowledge that divorce may bring about a financial claim. This, [X] plainly understands. However, what the extent of that claim should be is a mystery to even the most sophisticated and well educated of lay, as well as legal, persons and to suggest that there is needed an appreciation of what the result of a financial remedy claim might be, would be to set the test for capacity far too high.

On this basis, Mostyn J did not hesitate to find that X had capacity to marry.  He noted, however, that:

  • if this marriage happens and then later breaks down and a financial claim is made, then the scope of any claim by (name 2) is necessarily going to be extremely limited, given that the entirety of [X]’s means derive from a personal injury compensation payment which will have been calibrated by reference to his needs. There are numerous authorities in the books which have effectively emphasised the near-immunity of personal injury awards from a financial claim. So, the extent of any claim that were to be made on the breakdown of this marriage, were it to happen, would be limited, in my provisional prognostication at this point, to alleviating serious financial hardship and no more.

CategoryMental capacity - Marriage Date


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