Judge: Mostyn J
Citation:  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:
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  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:
Instead, Mostyn J focussed on whether X understood that his marriage could have financial consequences. In this regard he observed (at paragraph 31) that:
On this basis, Mostyn J did not hesitate to find that X had capacity to marry. He noted, however, that: