Hot on the heels of the first Irish case to consider capacity to marry under their new regime, by pure coincidence of timing, the matter has returned to the English courts. In Stockport MBC v EKK [2025] EWCOP 42 (T3), Trowell J has taken another run at the vexed question of whether the test for capacity to marry is a test which asks about marriage in the abstract, or marriage to a specific person. He did so by way of a preliminary issue in a case in which, as it stood, the individual in question was understood to lack capacity to make decisions about contact. As he noted,
16. There is on a simple (and maybe simplistic) view something odd about a situation in which it could be reported that EKK did not have capacity to make decisions as to what contact she should have with others, but at the same time a conclusion that she had capacity as to whether or not to marry.
However, this was not an issue for Trowell J at that stage.
The battle lines were outlined as follows:
18. The issue for this hearing had been defined neatly by Ms Roper as whether the matter in relation to which EKK may or may not have capacity to make a decision is:
a. Whether to marry, or
b. Whether to marry X.
19. Mr Borrett amended that by altering it so as (b) reads, ‘Whether to marry ID’. His point is to root the decision in the facts of this case. He says that he is not contending that in every case it is necessary to know whom P wants to marry. One may in some cases need to determine the capacity to marry as a general one, but here the decision which the court needs to consider is whether or not EKK has the capacity to decide to marry ID.
20. He says that in these circumstances, where there is a known person, it is a nonsense to not consider the concrete question of marrying that particular person and instead consider an abstract capacity to decide to marry, per se.
21. I note that should I be with Mr Borrett there will then be an issue as to what the relevant information will be that EKK should, in accordance with s. 3 MCA 2005 understand, retain and use or weigh in making the decision. He has provided in his skeleton argument 5 pieces of information, all tending to a negative view of ID. He has said he would need to add to them other, some positive, pieces of information.
22. Ms Roper, should I be with Mr Borrett, wants to consider what the relevant information should be, but it is a strong part of her case that the impossibility (and in general terms impracticality) of compiling this list is part of the reason why I should reject Mr Borrett’s arguments.
Trowell J clearly felt somewhat uncomfortable about having to make a decision by way of a preliminary decision in circumstances where (unlike as sometimes happens), the expert had not reported on an alternative bases.
38. There is necessarily involved in this case a sense of mental gymnastics. I am here making something of an abstract decision, as to the nature of the question which I am to consider, and in the first instance an expert is to consider when advising me whether EKK has capacity to make a decision in relation to marriage.
39. The abstraction comes in different layers but underlying it is an abstraction that goes to the very nature of the MCA 2005: it is not for me, in this situation, to consider what is in EKK’s best interests, ultimately (and not today) it is only for me to consider whether she has the capacity to consent to marriage.
40. Faced with the prospect of abstraction and a session of mental gymnastics there is something extremely tempting by what is held out as a common sense and practical point, namely, define the question as the practical one, the marriage to ID, rather than the abstract one, marriage in general.
41. There is force in Mr Borrett’s observation that the actual decision that EKK has to make is whether or not to marry ID, so why not consider that question? That can be developed in various ways. If marriage is considered a contract it is necessary to consider not only whether the contract, per se, can be understood but also whether P, entering into that contract can assess whoever it is who will be at the other end of the contract. Or, more concretely, given cohabitation is a normal part of marriage should a person be considered to have capacity to marry if they do not have capacity to decide with whom they should have contact?
42. There are two reasons, I have concluded, why I should not take Mr Borrett’s offer of a simple practical answer. First, I consider that Yorkmust guide my decision. That spells out in terms that it has been established that capacity to marry is status or act specific, not person or spouse specific. The decision in JB does not wipe away that authority. JB urges a return to words of the Act; that same urging permeates York.
43. Second, there are good principled reasons why Sheffieldis the right approach. The MCA 2005 is premised on an assessment of P’s capacity. It is inevitably therefore focussed on the operation of P’s mind. Extending the question which needs to be considered to include an assessment of the intended spouse, or even, to put it in terms more compatible with the Act, P’s ability to assess the intended spouse, will necessarily divert the court into an assessment of the intended spouse, rather than P’s capacity. If nothing else, there will need to be a determination as to the relevant information about the intended spouse which P will need to be able to understand, use, retain and weigh. That will put P in a substantially different position to someone not considered vulnerable. It will involve the apparatus of the court evaluating what is and is not relevant information about an intended spouse.
44. In response to the requirement that I have postulated above that in order to have capacity to marry one needs to have an ability to assess the character of the intended spouse I am helped by Munby J in Sheffield. He says:
85… The test is capacity to understand the natureof the contract of marriage. The test is not capacity to understand the implicationsof a particular marriage. Putting the same point somewhat differently, and this is really Mr Whitfield’s core submission, the nature of the contract of marriage is necessarily something shared in common by all marriages. It is not something that differs as between different marriages or depending upon whether A marries B or C. The implications for A of choosing to marry B rather than C may be immense. B may be a loving pauper and C a wife-beating millionaire. But this has nothing to do with the nature of the contract of marriage into which A has chosen to enter. Whether A marries B or marries C, the contract is the same, its nature is the same, and its legal consequences are the same. The emotional, social, financial and other implications for A may be very different but the nature of the contract is precisely the same in both cases.
What is being assessed in considering capacity to enter into marriage is a capacity to understand the nature of marriage. It is not an assessment as to whether P can understand the implications of a particular marriage. It struck me at first that this argument was more rhetorical than logical because when entering into a marriage it is usual to assess, albeit with all the risks that come with the imperfections of being human, the implications of that marriage. Munby J is however saying that such an assessment of the implications is not part of the court’s job in assessing capacity to marry. It might in fact be that the consequences of a marriage are such that someone who does not have capacity to determine with whom they should live cannot live with their spouse, but that is a different issue to the issue being here considered, whether or not they have capacity to marry. It would be fundamentally inconsistent with the approach to the capacity to marry in the common law to require an ability to consider the implications of the marriage to be part of marriage capacity.
45. I pause to reflect on section 3 (4) of the Act. I repeat it here:
(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of—
(a) deciding one way or another, or
(b) failing to make the decision.
Does this alter what is set out above? I do not consider it does; reasonably foreseeable consequences are not the same as the implications of a marriage which are being considered by Munby J. The reasonably foreseeable consequences will be such things as arranging a ceremony and considering living arrangements. They are the sorts of matters raised as relevant information in the paragraph cited above from Mostyn J’s decision of NB v MI and are dealt with in this case in the already existing report of Dr McIntosh carried out under the status rather than person specific analysis.
46. The approach set out in Sheffield and developed thereafter enables the right balance between the protection of the incapacitous and a restriction on paternalistic involvement of the court. P needs to have capacity to understand what marriage is. If P does have that capacity it is not for the court to evaluate the person whom they wish to marry. To do so would be an overreach of the court’s role.
47. So I conclude that the question to be considered here is: does EKK have capacity to make a decision to marry, not does she have capacity to make a decision to marry ID.
Comment
As a matter of pure law, it might, with respect, be doubted whether Trowell J was correct to consider himself bound by the York case, for two reasons: (1) York did not, fact, concern capacity to marry per se– the actual issue was as to the woman’s capacity to cohabit; and (2) whilst the Supreme Court in JB followed the approach taken in York in a number of respects (most obviously as to the ordering of the capacity test), Lord Stephens’ observations about focusing on the ‘matter’ by reference to concrete circumstances where relevant are, I would suggest, of equal relevance irrespective of the decision, and therefore arguably supersede any dicta suggesting to the contrary about marriage in York.
It would also, arguably, have been helpful had Trowell J considered the policy issues that underpinned Munby J’s approach in Sheffield in light of the evolution of both wider case-law and statutory law reform thereafter. Far less emphasis had been placed on questions about contact at the time of Sheffield (decided before the MCA was enacted). Trowell J was undoubtedly right to think it odd to potentially reach a conclusion that a person had capacity to marry, but lacked capacity to make decisions about contact with the person they wished to marry – so that they could be stopped (for instance) from entering the register office. By regulating contact, the social workers (or others involved in the person’s life) will inevitably be regulating the actual ability of the person to marry. To the extent that Trowell J was concerned about a person-specific approach to marriage leading to the policing of prospective spouses, such policing will inevitably take place in any such case.
And what of the Part 4A Family Law Act 1996 and Forced Marriage Protection Orders – which can be granted even where a person has capacity to marry and even where they are actively expressing a wish to marry? As Sir Andrew McFarlane P put it in K (Forced Marriage: Passport Order) [2020] EWCA Civ 190 at paragraph 65:
It follows that where an adult, even if they are capacitous expresses wishes and feelings to pursue a course of action, the court has jurisdiction, where the facts found and the assessment of the Article 3 risk so justify, to make orders protecting that person from doing that which she[1] wishes to do. In short, the court can make an order protecting a person from themselves. Where that is the case, the court should be plain that that is the course that it is taking and give adequate reasons.
FMPOs are therefore an example of a rare statutory beast: something which can be deployed ‘against’ a capacitous person, reflecting the importance that that Parliament has placed on ensuring that any marriage that a person enters into is one that truly reflects their will. Their enactment shows that, in some ways, capacity to marry is now very much less definitive than might at first blush be thought to be the case. Further, FMPOs are not granted in the abstract, but in response to specific situations. In any situation in which a person lacks capacity to make decisions as to contact, I would suggest that (at a minimum) real questions must arise as to whether any marriage that they might wish to contract would fall within scope of s.63A Family Law Act 1996. At that point, the arguments in favour of maintaining a low, abstract, test for capacity to marry might be thought to seem almost entirely artificial.
I would venture to suggest, therefore, that this decision may well not be the last word. And, at that point, it might well also be necessary to consider in the policy mix any Parliamentary response to the Law Commission’s Wills Report, in which the Law Commission has recommended abolishing the current rule that marriage renders any previous will void. Does that raise or lower the policy bar in relation to capacity to marriage?
[1] Note, Sir Andrew used the pronoun ‘she’ here, because K was female. However, as he noted in the judgment, the statistics demonstrated that, as at that point one in five victims was male.
