After a varied life as captain of the Leeds University hockey team, a journalist and a teacher, Joan Blass settled into retirement with her husband, Ronald, in Leeds. They lived in a small dwelling at the bottom of their daughter’s garden. When Ronald died in 2008, Joan continued to live there on her own, but saw her daughter, Daphne Franks, several times a day.
Three years later, and after being diagnosed with vascular dementia, Joan was trimming trees at the bottom of her drive when a stranger walked past and stopped to talk to her. Joan, already into her late eighties, uncharacteristically invited a seemingly chance passing stranger, Colman Folan into her home for tea.
There is nobody around who can give us an account of how the conversation proceeded that is both honest and cogent. But Folan, in his sixties, gradually brought his belongings into Joan’s house and, within a month, he’d moved in with her.
Joan’s faltering faculties were no bar to what might have looked like a whirlwind. Folan whisked her away on regular trips, even abroad, and notably without telling Daphne—who was literally a few seconds’ walk away—where they were going. Even more alarming was Joan’s abject lack of grip on what was going on: “She used to ask what his name was and where he came from,” Daphne says. “She thought we’d got a carer for her.” Joan would vaguely refer to him as “laddo,” which is what she called anyone whose name she didn’t know—as Daphne remembers, who at that time was equally clueless about who Folan was.
Despite having power of attorney for Joan, Daphne felt powerless: those powers relate to medical and financial situations, whereas whatever it was that was unfolding here appeared to be social or even romantic. The situation appeared general, making it tricky to even specify what exactly the authorities were meant to do: after all, Daphne confirms that Folan did not ask Joan for money while she was alive. And indeed, the police told her there was nothing they could do because Folan seemed to be living there on Joan’s invitation, and there was no evidence he had inflicted any harm.
Daphne was, however, dismayed that they didn’t seem to take into consideration the seriousness of her dementia. Social services visited, but Daphne assumes Folan charmed them away. He’d also initially attempted to charm Daphne, but with time he became increasingly hostile to her, getting to the point of ignoring her completely when she came over to check on her mother.
Joan died from cancer at home on Easter Sunday, 2016, aged 91. A few days later, Daphne received a concerned call from her mother’s doctor: did Daphne know that Joan and Folan were married? Daphne learned that they had married in Leeds, and “honeymooned” 80 miles away in Blackpool over the previous winter, with Folan’s son and a woman he met at a local pub quiz as the only witnesses. “At this point, she couldn’t read or recognise family members, her address or her date of birth. She wasn’t able to follow a television programme,” Daphne says.
Without telling Daphne or any other friends or family anything about the plans, Folan organised Joan’s funeral. Joan had had a phobia of being buried and wished to be cremated, but Folan had her buried anyway—in an unmarked grave. Meanwhile, he inherited everything she owned.
Afterwards Daphne moved to a different part of Yorkshire; she couldn’t face living 30 yards away from her mother’s old house, which now belonged to Folan. Personal and family treasures that she had safely stowed in her mum’s house—her own wedding dress, her grandfather’s letters from the First World War—were never seen again.
But Daphne did not look away from the situation: instead, she investigated why all of this had been allowed to happen. She soon discovered that her mother’s situation wasn’t some awful one-off, but a systematic problem in how the law operates: the institution of marriage allows predators to slip through the cracks, and, once they do, families are often virtually powerless in the face of the devastating consequences.
On legal advice, Daphne took Folan to court for controlling the funeral. But Daphne says that the judge decided that marriage was a trump card. The case left her with nothing but a crippling £200,000 bill in legal fees.
Terrible as it is, the story of Daphne and Joan is anything but unique. As property prices continue to swell, and property becomes increasingly concentrated in the hands of older generations, the motive of predatory suitors only grows stronger. The law, however, remains frozen in aspic: unless a pre-written will specifies what should happen in the event of a future marriage, the new union automatically revokes any wills which either party to the marriage previously had in place. Unless a new document is made, intestacy provisions apply, meaning the spouse gets to keep all assets up to the value of £270,000, plus half of the remainder of the estate, with only the rest split between any surviving children. So the old wedding vow promise—“all that I have I share with you”—does indeed trump other assumptions at law.
“Automatically revoking a will was a safety net for people who got [re]married and forgot they’d left their ex all their assets,” explains Marisa Lloyd, a barrister at Parklane Plowden Chambers. But that is one set of circumstances: in others, it is less a safety net than a trap door. In Joan’s case, the marriage overwrote an existing will stating that Daphne and her brother should inherit her estate. That might have been fine if that was what she wanted, but that is not possible to establish in cases when the individual doesn’t have the mental capacity to understand financial and other consequences of their actions.
In theory, explains Lloyd, “a person’s capacity should be assessed in relation to the specific decision they are taking.” Under the Mental Capacity Act, a person lacks capacity if they’re unable to understand, retain, use and communicate the information relevant to a decision. And in many contexts this test is applied in the way you would expect. But whether for reasons of tradition or anything else, this test isn’t consistently applied to marriages.
There are numerous cases in which judges have ruled that a marriage is only permissible if both parties can demonstrate an understanding of the financial implications, Lloyd says. Marrying without having capacity would theoretically be classed as a forced marriage by law. But people without capacity do tie the knot: partners are supposed to have separate interviews before any possible marriage to check they can legally be married, have the capacity to do so and of their own free will, but registrars lack formal training in how to assess mental capacity. Unlike in a context of banking, business or even the writing of wills, money is far from being the only thing going on, and the system isn’t set up to focus on financial fraud.
Daphne says her mother couldn’t speak a full sentence at the time of her marriage with Folan. When she complained to the Leeds Register Office five months after the ceremony, Daphne was told her mum had been “fine on the day, totally compos mentis”—but this was purely based on the registrars’ memories of the wedding. “I asked if they had not found it strange that a 67-year-old man was marrying a 91-year-old woman with no family present, and she replied ‘Ah, well—we can't judge,’” Daphne says. “According to their own handbook, it is their job to judge, but they are not given any robust procedures to do so.”
Although the registrars said in a letter to Folan's solicitor that Joan hadn’t been able to answer some of the questions on the day, they relied on the fact that he’d described her as “forgetful,” Daphne says, and therefore went ahead with the ceremony.
But again, many marriages will have age gaps and dominant partners, and quite a few will involve people who either lack or want to get away from their relatives, and none of these things are automatic triggers for intervention.
Of course, some of the problems could also apply where a vulnerable individual is pressed into changing their will. But in that context, either the solicitor—or they, themselves—might be primed to sniff out trouble. Andrew Bishop, senior associate in the disputed wills and trusts team at law firm Shoosmiths, explains: “If someone knows that a person is vulnerable, rather than getting them to change their will in favour of the predator, the easiest thing is to marry that person and [wait for them to] pass away, and get the majority—if not all—of the estate tax free.” Concerned family members must, he explains, seek legal advice urgently, as options are very limited once a loved one has passed away, as Daphne found to her cost. It is obviously far harder to prove the incapacity of a person that’s no longer around.
Daphne says that the Leeds Register Office told her there is no official record, audio or video recording, or any evidence whatsoever, kept from the time of marriage. This lack of evidence was the reason given by the Crown Prosecution Service for not being able to prosecute for forced marriage. “If you ring your bank your call may be recorded—but if you get married there is absolutely no record of what happens except the marriage certificate,” Daphne says.
The office also told her that her mother seemed basically fine on her wedding day; while the General Register Office told her that registrars always follow procedures. The trouble is, as mental capacity experts will attest, those living with dementia can often present well, until they are asked telling questions. Bishop comments that “without training, registrars will fail to pierce the social facade presented by those living with dementia and Alzheimer’s, and dubious marriages will continue to take place.”
In a conference room in Ontario a number of years ago, Kimberly Whaley, principal of a Canadian law firm, and Albert Oosterhoff, counsel of the same firm, devised the term “predatory marriage” to describe situations like Joan’s. The roots of the Canadian legal system lie in the English common law, and marriage revokes a will in most of Canada in much the same way as this country. Successful challenges to set aside marriages are rare, Whaley says, being “limited to those where there is an abundance of medical reports and information demonstrating incapacity to marry.” Yet in many such cases, unlike with Joan, the victim is already so isolated from family and friends that nobody finds out anything at all until after they die. Sometimes predators even cut victims off from their doctor, which means there’s no medical records.
Remarkably, it is only since 2014 that it’s been illegal to force someone into marriage in the UK.Today, there remains no civil redress. Even a marriage eventually proven to have involved mental incapacity, an outright mistake or even duress cannot be annulled in the family courts once one of its parties has died. Even with the living, there are precious few ways of reversing a predatory marriage—it can sometimes be done, says Sarah Young, director at Ridley and Hall solicitors, but it is very difficult and costly. Moreover, it still doesn’t restore any pre-marriage wills that a wedding revoked.
Even in the criminal courts, a conviction requires evidence. In theory, the criminal offence was in place just in time to cover Joan’s case, but in practice it had no bite. “If [Folan] knew my mum didn’t have capacity to consent, he’s committed the crime of forced marriage,” Daphne says, “but there’s no audio or video evidence of the marriage” or its nature. The Crown Prosecution Service told her it would need evidence of what was said on the day, and whether Joan appeared to be in a fit state of mind. “No one can prove mum didn’t have a miracle recovery,” she says.
Predatory marriages occur without being officially recognised, and so there are no official numbers. But anecdotally, lawyers are noticing more and more people coming to them about a relative caught who has been ensnared. And there is every reason to expect this could be a growing problem: the motive grows with property prices, and the opportunity spreads with medical advances that mean more people are living for longer with conditions like dementia.
Daphne is now pushing for reform. She has enlisted the help of politicians and legal experts, including Bishop. One big changes they’re campaigning for is legislation that stops marriage automatically revoking any previous will. They also want to see a requirement for registrars to put a series of simple questions to those about to get married—such as their name, and whether they understand what a will is and how it’s affected by marriage—and, crucially, to record their answers. If this was already the case Joan would have failed the test as soon as she was asked her name, Daphne says.
Rachael Clawson, an associate professor at the University of Nottingham, has conducted research that suggests the problem is not a lack of willingness among registrars to help safeguard people—they just need the tools do it, she says: “Registrars are saying they don’t understand capacity to consent and can’t assess it, whereas the government is saying it’s their job to ensure marriages go ahead to the best of their ability.” “There is,” she says, “a real disconnect.”
A further issue, explains Bishop, is that someone without capacity isn’t legally allowed to make a new will unless they apply to a specialist court, an expensive procedure. While the preyed-up victim is still alive, the family can apply to make a statutory will on their family member’s behalf. But Young says “it’s costly,” and “not a brilliant option.” The many restrictions around wills contrast with the effective laxity around marriage, even though it can over-ride them. And for Young, tackling the marriages direct has to be the answer: “We want to prevent this at source, rather than try to unpick it further down line.”
Daphne and those supporting her see a missing logical link between powers of attorney and the realm of marriage: “I had power of attorney for my mum,” Daphne says. “She couldn’t identify money, yet she was allowed to make the financial decision that overturned her will.” Extending the power of attorney from finance to marriage, however, would need to done with great care if it were not to compromise the human rights (and particularly the right to private and family life) of people with learning disabilities and dementia who, despite their condition, have preferences and interests. It is also important, Bishop acknowledges, to prevent others (such as selfish relatives, or former partners) meddling unduly: “You don’t want people challenging every marriage if they dislike it,” he says.
But of course, no rights or freedoms can be exercised by someone who can’t understand they are making a choice. The crunch issue for reforming the law then is—exactly as for the registrars—“working out” exactly “who does and who doesn’t” have capacity, says Clawson. And “that can be really difficult.”
In 2018, the Leeds North-East MP Fabian Hamilton—horrified by Joan’s case—presented a private members’ bill on predatory marriage to the Commons. Like the vast majority of private members’ bill, it ultimately foundered for lack of parliamentary time. He has continued to raise it—including at Prime Minister’s Questions this June. But he says that three successive registrar generals have refused to meet with him to discuss the issue.
Campaigners are resigned to a slow grind: “I’m not optimistic the law will be changed so that a will isn’t revoked on marriage,” says Lloyd. “The law has been around for a long time.” According to one paper published by the Law Commission, the current intestacy rules date back almost a century, to the Administration of Estates Act of 1925.
But Ontario in Canada gives reason to hope that reform might eventually be accomplished. The law has recently been changed such that, from next year, marriages will no longer automatically revoke a will. That might not prevent all predatory marriages, concedes Young, who also insists that “if the law could be changed, this would be a really helpful step in prevention and raising awareness.”
Hamilton finally has a meeting set up with the deputy registrar-general, while Daphne has been told by someone from the Ministry of Justice that predatory marriage is now “very much on our radar.” So just possibly officialdom is waking up. If so, it’s not before time. Whitehall would do well to listen to Oosterhoff on why he coined the term “predatory marriage”: “The moniker brings to life a bird of prey that descends on someone whom they want to devour—and that’s exactly what it is.”
