With Australia’s ageing population, governments have made tackling elder abuse a national priority in recent years, as they seek ways to support and safeguard older people’s autonomy. One of the areas where there is a tension between the need to balance the autonomy of older people with the need to protect them from being vulnerable to abuse is the area of predatory marriages and separations. Let’s look at some of the issues around this subject and suggested ways the system can be improved to confront the escalating challenge of elder abuse in our society.
Although people shouldn’t be regarded as vulnerable just because of their older age, there are of course factors associated with age that can make people more prone to abuse. Such factors might include physical disabilities or cognitive impairments (such as dementia). When people become vulnerable due to such factors, relationships of dependency may develop with family members, friends, carers, even neighbours or other acquaintances. Those relationships might be completely innocent but in some cases, there’s something much more nefarious going on.
What are predatory marriages?
The concept of a predatory marriage is nothing new. Most of us recognise this to be when a vulnerable person is exploited and manipulated into a marriage for someone else’s financial gain. Such a relationship is often hidden from loved ones who sometimes only become aware of a marriage after it has taken place. Due to the financial consequences of marriage, this kind of predatory marriage is typically very distressing to loved ones.
This is particularly so because (in most circumstances) a marriage revokes a will, and if a new will isn’t executed before the vulnerable person’s death, their estate may be dealt with under intestacy rules—meaning the new spouse might receive the entire deceased person’s estate, even if only after a short marriage. The deceased person’s family can then fight this but will need to establish that their loved one lacked the capacity to consent to the marriage.
Sometimes wills contain a clause “in contemplation of marriage” which prevents a will from being revoked on marriage, but in some states this can’t be general and has to refer to a specific marriage or a specific spouse. And a predatory spouse can still bring a claim for financial provision after death.
Valid consent to a marriage
There are some protections against predatory marriages in Australian law. The Commonwealth legal framework for marriage is contained in the Marriage Act 1961 and the Guidelines on the Marriage Act 1961 for Marriage Celebrants.
Under the law, marriages can be voided under certain circumstances, including if there was no real consent, for a range of reasons including due to the mental incapacity of a party.
Section 23B(1)(d)(iii) of the Marriage Act provides that for valid consent, parties must be mentally capable of understanding the nature and effect of the marriage ceremony. Note that this reference is to the ceremony itself, not to the actual financial and legal consequences of marriage. This vagueness has drawn criticism by commentators who ask: Is it enough for a person to understand they are participating in a marriage ceremony, or to have a general understanding of marriage, or should they have a detailed awareness of the actual property consequences of the marriage?
However, the statutory test for the capacity to marry is still regarded as a useful tool to safeguard against predatory marriage.
Predatory separation
Alongside the problem of predatory marriage is the issue of predatory separation. This occurs when someone other than the vulnerable person manipulates them into separation and divorce, whether or not the vulnerable person wishes to do so, in order to eventually obtain enhanced property entitlements or future inheritances.
This is mostly seen in situations where adult children of a former marriage object to a new marriage for fear of missing out on an inheritance. The adult child may push for a marriage annulment or claim their parent has lost capacity but is in fact separated and needs a divorce and property settlement. Alternatively it can occur if one spouse claims to be separated (if their ailing spouse has had to be physically separated from them due to care needs) but the vulnerable spouse actually still believes they are in a relationship. That vulnerable spouse may only find their relationship has ended once they are being served with court documents.
Lawyers have also described situations where an elderly spouse appears to be the one making an application but is accompanied to meetings by an adult child who speaks for them, or the older person appears to defer to the adult child when decisions need to be made. This raises the suspicions of the lawyer, who may well wonder if the vulnerable applicant actually does have capacity and a real intention to separate—or whether coercion is at play.
Legal capacity
In order to make the decision to marry, cohabit with someone, or separate and divorce from them, a person needs to have legal capacity. This is the threshold for individuals to take certain actions that have legal consequences and to be accountable for their choices. People over 18 years of age are legally presumed to have capacity unless it can be proven otherwise by another party.
However, the legal tests for determining capacity vary and the problem is there are many ways to assess capacity, both by lawyers and medical professionals. There is currently no national recognised system for the assessment of legal capacity. Instead, it’s an ad hoc collection of methods that vary across jurisdictions. With the significant consequences of loss of legal capacity, there have been calls for making assessment methods more consistent and transparent.
Further, despite the legal implications of marriages and deaths, legal tests for determining “legal capacity” are different for marriage and divorce than they are for the “testamentary capacity” required to make wills, powers of attorney and advanced health directives. For example, lawyers are required to obtain a medical opinion in relation to testamentary capacity but not for marriages and divorces.
The role of lawyers
Lawyers, conscious of the problem of elder abuse and potential predatory marriages or separations, can identify whether it is necessary to arrange for assessment of legal capacity of a client. But it’s not a simple and straightforward process. Capacity is decision-specific and can even fluctuate over time (for example, due to the effects of temporary stressors or use of medication). Lawyers also have to be wary of the fact that even requesting a medical assessment of capacity can be seen as conceding that capacity may be an issue. However, it’s still the professional duty of a lawyer to raise the issue of capacity if it is suspected that it is relevant. Another part of the lawyer’s role is to identify instances where adult children who are acting in the role of case guardian have ulterior motives.
The role of marriage celebrants
Even marriage celebrants have a role to play in uncovering potential situations of predatory marriages. Before solemnising a marriage, a celebrant needs to determine that the parties are mentally capable of understanding the nature and effect of the ceremony. To solemnise the marriage if they have reason to believe that one of the parties doesn’t meet the standard is actually an offence carrying a penalty of up to six months’ imprisonment.
Suggested reforms
The Australian Law Reform Commission (ALRC) last year delivered its Final Report entitled “Elder Abuse – A National Legal Response”. It outlined recommendations for how to develop a national coordinated response to the problem of elder abuse and how to best safeguard older persons from abuse by formal and informal carers.
Despite the existing requirement for marriage celebrants, the ALRC report recommends that there is even more training for celebrants to better be able to identify vulnerable individuals and be alert to any capacity issues. The report also recommends that there be national best practice guidelines aimed at improving lawyers’ understanding of the potential for elder abuse using wills and other advance planning documents. Lawyers should receive more training in how to identify risk factors associated with undue influence and being alert to circumstances where an unrelated person may benefit.
Other ideas on how to mitigate risks to vulnerable people have been debated by stakeholders over the years, including the question of whether new marriages should automatically cancel out existing wills, and whether there should be a requirement for public notices of people’s intentions to marry to remove the secrecy factor and the element of surprise that predatory spouses often rely on.
In cases where worried loved ones are aware of a vulnerable person’s new marriage, they should ensure their loved one understands the need to draw up and execute a new will, and ideally also a Binding Financial Agreement.
If you need assistance with a legal matter relating to a marriage or divorce, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.
