What can you do legally if your elderly father with dementia marries a woman 30 years younger?
How does marriage law apply?
The right to form relationships is a fundamental human right. The court does not have a right to interfere in marriages unless the exercise of this right involves abuse, exploitation, or sequestration of the person by the spouse. As with other areas of decision-making, the capacity to marry is assumed unless evidence calls this presumption into doubt.
In such a scenario, it is important to question who would be responsible for triggering a legal challenge to a person’s decision to marry? In the case of late marriage or remarriage where a person’s cognitive capacity may be uncertain, the reasonable concern of family members is expected. However, the court may exercise caution when looking to distinguish between the proper concern of family members and family conflict arising from, for example, disgruntled children who resent the remarriage of a parent. As with most matters of family law, this assessment is undertaken case-by-case.
What is the legislative basis for challenging the validity of marriage?
The most appropriate starting point is the legislative authority for marriage. The Marriage Act 1961 (Cth) (‘Marriage Act’)is the primary authority allowing ‘civil celebrants to solemnise marriage; a union of 2 people to the exclusion of all others, voluntarily entered into for life’.
Sections 23 and 23B stipulate the ‘grounds on which marriages are void’. In a circumstance where an elderly man with dementia marries a significantly younger woman, section 23B provides that a marriage is void if ‘the consent of either of the parties is not a real consent’. In particular, if ‘that party did not understand the nature and effect of the marriage ceremony’.
A party’s inability to understand the nature and effect of marriage gives rise to the issue of cognitive capacity which the High Court addressed in Gibbons v Wright. The Court found that a person must have the cognitive capacity to understand the general nature of the particular transaction they’re participating in. The cognitive capacity required is different for different transactions.
What has the Court’s position been on capacity to marry?
Stemming from its English law roots, Australian marriage law does not directly provide a test for assessing capacity to marry. Rather, the standard for capacity to marry is based on an assessment of the person’s understanding of the nature and effect of the marriage ceremony. In Sheffield City Council v E  EWHC 28, Munby J of the Family Division of the High Court of Justice in England summed up the law on capacity to marry in four propositions:
- It is not enough that someone appreciates that they are taking part in a marriage ceremony or understands its words.
- The person must understand the nature of the marriage contract.
- This means the person must be mentally capable of understanding the duties and responsibilities that normally attach to marriage.
- Nevertheless, the contract of marriage is in essence a simple one, which does not require a high degree of intelligence to comprehend. The contract of marriage can readily be understood by anyone of normal intelligence.
Munby J echoes the court’s general reluctance to have the test for capacity to marry be set too high. His Honour notes that:
‘There are many people in our society who may be of limited or borderline capacity but whose lives are immensely enriched by marriage. We must be careful not to set the test of capacity to marry too high, lest it operate as an unfair, unnecessary and indeed discriminatory bar against the mentally disabled.’
– Sheffield City Council v E  EWHC 28 98
However, in similar spirit the court is careful to also not impose a stringent test of capacity to marry. This would open the floodgates to easy legal challenges against the validity of regular or seemingly sound marriages.
How do Australian Courts deal with legal challenges regarding capacity to marry?
Following Munby J’s suggestion in Sheffield City Council v E, it may be possible to obtain an injunction in an Australian Supreme Court to restrain the marriage of someone who lacks the capacity to marry.
Such matters are often dealt with by an application to the Family Court of Australia for a declaration of nullity. A marriage can be declared void for reasons where the consent of either of the parties was not a real consent because:
- the consent was obtained by duress or fraud,
- a party was mistaken as to the identity of the other party or as to the nature of the ceremony performed, or
- a party was mentally incapable of understanding the nature and effect of the marriage ceremony.
In the inquiry for capacity, Australian Courts take the additional step of applying nature and effect of marriage. Chisholm J in the AK v NC  Fam C 1006 case of the Family Court of Australia noted that mere awareness of going through a marriage ceremony was not enough; a person has validly consented if they have a general understanding of marriage and its consequences, or an understanding of the specific consequences of the marriage they were entering into for the person whose consent was in issue.
What about the particular circumstance of a person with dementia marrying?
1. Assessing factors to identify general understanding of marriage
Oliver (Deceased) v Oliver  FamCA 57 was a case where an elderly 78-year-old man diagnosed with dementia and under full-time nursing home care as a result of his mobility issues, married his 49-year-old former cleaner. In the weeks prior to their marriage, the couple amended the now-deceased man’s will, materially benefitting the woman.
The court held the marriage invalid on grounds of mental incapacity because the evidence showed the deceased was not able to make rational decisions and understand the nature and effect of marriage. In earlier UK and Australian court decisions, Justice Foster cites Mathieson v Perry  56 WN (NSW) 89  and affirmed the judge’s reasoning in that case that a party is mentally capable if they understand the general obligations and consequences of marriage.
An application of the legal elements to particular circumstances is essential. In doing so, Foster J outlines factors considered in the reasoning of whether the deceased man was mentally incapable of understanding the nature and effect of the marriage ceremony to the woman. These are as follows:
a) the physical observations of the deceased; children and overall family being witness to his cognitive and mental capacity in the months leading up to the marriage ceremony;
b) the Respondent’s (49-year-old woman) oral evidence commenting on the cognitive capacity of the man in the period from February 2011 until the date of marriage;
c) the extensive pre-marriage medical history of the deceased, which supports a very strong inference of ongoing diminished cognitive capacity and dementia;
d) the diagnoses of the deceased upon his admission to hospital in May 2011, only some three weeks after the date of the wedding, supporting a very strong inference of ongoing diminished cognitive capacity and dementia;
e) the deceased’s General Practitioner certificate detailing his diminished capacity to make rational decisions and mental health condition at time of marriage
f) the age and financial disparity between the elderly man and the woman. Particularly the woman’s motives behind facilitating change of will.
g) the little evidence from the Respondent (49-year old woman) and her witnesses in relation to the man’s capacity at the time of the ceremony to understand the nature and effect of the marriage. His mere presence and participation in the ceremony is insufficient to deem capacity.
These types of evidentiary considerations indicate that the Court takes a comprehensive interpretation approach to identifying the validity of a marriage where capacity is in question.
2. Assessing specific consequences of marriage
Having explored what a general understanding of nature and effect of marriage means, Babich & Sokur and Anor  FamCA 236  explains what it means to have an understanding of the specific consequences of marriage for the person whose consent is at issue. Reference to a ‘specific consequence’ is an equally important consideration in the test for capacity. Mrs Babich’s son applied to the Family Law Court to have the marriage declared null on the basis of his mother’s vascular dementia and cognitive impairment from alcoholism. During witness questioning, Mrs Babich was asked “what happens when people marry?” She replied saying “they live together, help each other, stay together” and that a husband was closer than a friend. But while this may indicate a general understanding of marriage, the Court still held the marriage void as she was mentally incapable of considering the effect and specific consequence of the marriage on her. Even though Mrs Babich acknowledged Mr Sokur (Respondent) as her husband, she denied any intimate relationship between the two of them. Mullane J found this and the evidence of the Respondent marrying for financial advantage contributed to deeming the marriage invalid.
3. Distinguishing ‘simple’ and ‘complex’ decision-making in the context of marriage
In the recent 2021 case of Alford & Lyden  FamCA 38, Baumann J held the marriage void on grounds of finding the man incapable of understanding nature and effect of the marriage ceremony. Based on a neurologist’s report, the man had a variant of Alzheimer’s Disease prior to his wedding with the Respondent. While he was capable to make his own decisions about personal health care, lifestyle accommodation and financial affairs, the neurologist emphasised his decision-making was limited to ‘simple decisions’. The man’s capacity to make complex decisions was diminished. This contributed to Baumann J reasoning that the man lacked capacity to make complex decisions which have long term consequences.
How does one successfully challenge a person’s capacity to marry?
Challenging the validity of marriage is not a straightforward endeavour. It is difficult to displace the assumption that both people entering into marriage understood the ceremony and the long-term effect on their lives. The evidence must be strong. Health assessments conducted by experts, for instance, can help evaluate whether a mental disorder has influenced the person’s judgment of or affections towards the proposed spouse, the person’s understanding of the proposed marriage, and the responsibilities, duties and effect of marriage to that specific person. Ultimately, the onus of proving the person’s diminished capacity to consent to marriage rests on the claimant challenging the validity.
If you are looking to make a legal claim regarding Australian marriage law, please do not hesitate to contact Elderlaw Legal Services to make an enquiry. Our team of experienced solicitors at Elderlaw Legal Services are here to assist you. Please get in touch with us on 02 9979 1009.