Predatory Marriages

BY: VALERIE DYE 

A predatory marriage is a marriage where one person tricks another person into marriage, for the sole purpose of making financial gains. The person who is tricked into marriage is often elderly, lonely, depressed or mentally challenged. Although this phenomenon commonly envisages a younger predatory spouse and an elderly innocent spouse, a predatory marriage can also occur with an innocent spouse who is not very elderly.  In the 2017 case of Hunt vs Worrod, the gentleman who was tricked into marriage was just 50 years old.

Predatory marriages are quite common between a caregiver and an elderly person.

One of the main concerns about predatory marriages is that in Ontario marriage revokes all prior wills except a will that has been made in contemplation of marriage. As such, if an elderly person has already gifted his assets to his children under a will, a subsequent marriage nullifies this. If the individual dies without making another will he dies intestate and under the rules of intestacy the new spouse becomes entitled to a significant portion of the estate.

Even if a new will is made after marriage and the testator gifts his entire estate to his children, the predatory spouse may still claim an inheritance as a dependant after the spouse dies or opt to apply for an equalization of the net family property of the deceased.

Once a predatory marriage has been entered into it is often difficult for those interested in the marriage or in the estate of the deceased to challenge the validity of the marriage.  The court will need to determine whether or not the innocent spouse had the capacity to marry.  As stated in the British Columbia case of Ross-Scott v Potvin

A person is capable of entering into a marriage contract only if he or she has the capacity to understand the nature of the contract and duties and responsibilities it creates.  The assessment of a person’s capacity to understand the nature of the marriage commitment is informed, in part, by an ability to manage themselves and their affairs.

In Hunt and Worrod the court had to determine the capacity of Mr. Hunt to marry Ms. Worrod.  The parties were involved in a previous relationship which had ended a few months before Mr. Hunt had an accident that led to a brain injury.  Before the accident, Mr. Hunt had decided that he could not marry Ms. Worrod. After Mr. Hunt’s discharge from hospital, Ms. Worrod entered into a secret marriage with him. His children challenged the validity of the marriage.  After hearing evidence of Mr. Hunt’s cognitive state, the court found that he lacked the capacity to marry and that the marriage was therefore void. 

In determining capacity courts need to balance the individual’s right to determine whom to marry against the fact that the individual might not have understood how the marriage affects him. As such:

“A court should only reject a person’s autonomy in the clearest of cases, where an individual lacks a “clear, free and personal choice.”  Consequently, a court can only annul a marriage due to the absence of consent if an individual does not understand the nature of the marriage contract and the duties flowing from it.

The persons challenging the validity of the marriage (often the relatives of the innocent spouse) has the burden of proving lack of capacity.

Where there is a fear that a loved one may be duped into a predatory marriage, certain steps may be taken to protect the assets of the individual.  One of the main steps is to transfer of assets into the names of the children while the parent is still alive.