Family, Estates & Trusts 

FREE CONSULTATIONS

BC Family Law: What if a Spouse Lacks Capacity to Understand Consequences of Marriage?


  • Blog
  • Capacity to Marry
  • BC Family Law: What if a Spouse Lacks Capacity to Understand Consequences of Marriage?

Marriage is a contract. If one or both parties lacked the mental capacity to understand the nature of the marriage contract and the legal consequences flowing from it, the marriage can be annulled by the court, meaning that none of the legal consequences that typically flow from a marriage arise. The circumstances surrounding a marriage may arouse suspicion – for example, in a situation where one of the purported spouses is elderly, has dementia, Alzheimer’s, mental illness, or a brain injury – but it is difficult to void a marriage after the fact due to lack of capacity. In determining whether a person has the capacity to enter into a marriage contract there is tension in the analysis between preserving personal autonomy and the right to choose how to spend one’s life against the possibility that the person did not fully appreciate how marriage affected his or her legal status or contractual obligations. In Hunt v. Worrod, 2017 ONSC 7397, the court found that the heavy burden was met and declared that a secretive marriage between a 50-year-old man with an acquired brain injury and his ex-girlfriend was null and void from the start.

Secretive marriage in Hunt v. Worrod

Kevin Hunt and Kathleen Worrod had an “on again, off again” relationship that ended in late 2010 when they divided their assets and signed a Separation Agreement. On June 18, 2011, Mr. Hunt was involved in an ATV accident in which he sustained a catastrophic brain injury. He was in a coma for 18 days. After four months of extensive occupational and physiotherapy he was released into the care of his sons, James and Justin. Three days after Mr. Hunt’s discharge from the hospital, he went missing. He was found later that day at a hotel two hours from his home, with Ms. Worrod. James and Justin learned that Mr. Hunt and Ms. Worrod had married that afternoon. Although members of Ms. Worrod’s family were present at the wedding, no one from Mr. Hunt’s family, nor any of his friends were present or had been notified about the marriage. At the time, Ms. Worrod had no appreciable assets, whereas Mr. Hunt owned property and business assets, and was expecting to receive a personal injury settlement of more than $1,000,000.

Did Mr. Hunt have the capacity to marry?

Mr. Hunt, represented by sons as his court appointed guardians, applied for an order declaring the marriage to Ms. Worrod as void ab initio due to lack of capacity to consent. As our BC family law and estate litigation team previously discussed, 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 the duties and responsibilities which a marriage creates. Where lack of capacity is established, the marriage is void ab initio – it is as if it never happened, and none of the legal consequences that flow from a marriage will arise.

BC family law and estate law consequences of marriage

Marriage has significant legal consequences. From a BC family law perspective, married spouses have rights to a share of family property and pension division if they separate, in addition to the potential for entitlement to spousal support. There are also significant BC estate law implications. If one spouse dies with a Will, the surviving spouse has standing to apply to claim a larger share of the deceased spouse’s estate. If a spouse dies without a Will, the BC intestacy rules apply, giving the surviving spouse a priority distribution from the deceased spouse’s estate. If the spouse has children from a previous relationship (as Mr. Hunt did), a valid second marriage will have significant implications for expected beneficiaries. Mr. Hunt’s sons from a previous marriage, Justin and James, would normally be his expectant heirs, and if he was unmarried and died without a will, they would inherit all of his estate. Conversely, if the marriage was valid and Mr. Hunt died without a Will, Ms. Worrod would be entitled to the first $150,000 of his estate, with one half of the residue going to Mrs. Worrod and one half divided amongst Justin and James.  

Marriage declared void

The evidence was clear that priorto the ATV accident, Mr. Hunt understood and appreciated the consequences and responsibilities of marrying Ms. Hunt and he had made his decision not to do so. The evidence also overwhelmingly supported a finding that Mr. Hunt lacked the ability to understand the responsibilities or consequences arising from a marriage following his ATV accident. The consensus of the medical evidence, which was supported by the evidence of Mr. Hunt’s family and friends, indicated Mr. Hunt’s brain injury left him with significant cognitive difficulties, including impairments to his ability to abstract reason, problem solve, make decisions, consider alternatives, and develop strategy; he also lacked insight and self-awareness of his own impairments. Mr. Hunt lacked the forethought and care to think about the consequences of marriage and seemed indifferent as to what the consequences would be for him. He was also noted to be susceptible to undue influences because his will could be dominated. Mr. Hunt did not have the requisite mental capacity to marry Ms. Worrod on October 24, 2011.

Take home point from our team of BC family law and estate litigation lawyers

When a vulnerable person marries, it can give rise to suspicion that the person did not understand the legal consequences of the marriage, but rather is being preyed upon for the purposes of securing financial gain. It is difficult – but not impossible, as the Hunt case demonstrates – to void a marriage after the fact due to lack of capacity. Depending on the circumstances, there may be a number of other legal options (for example, see our BC family lawyers’ discussion of a case in which the inter vivos transfers of property within a predatory marriage was successfully challenged by the vulnerable spouse). If you have concerns that a you, a family member, or a friend is being taken advantage of by a financial predator, contact Onyx Law Group’s team of BC family law and estate litigation lawyers for a 30-minute free consultation.

Have questions about a topic?

Onyx Law Group represents clients in family law, estate and trust litigation, estate planning and probate matters. Consult with our experienced team at 
(604) 900-2538

TELL US HOW WE CAN HELP

(604) 900-2538

Contact Us
  • We were made to feel valued and heard. Integrity, competence and a passion for justice definitely describes Onyx. They are also caring, compassionate and have a good sense of humour.

  • Thanks to Onyx’s straightforward approach, this litigation was resolved with the best outcome for myself and my children. Although this ordeal was emotionally trying, we can get on with our lives, without added worry and stress.

  • I chose the right law firm and I know our future is on the proper course because of Onyx. I wouldn’t hesitate to tell anyone who needs good legal representation to take my words to heart.

We will find the best way to help you

Vancouver

650 West Georgia Street
Suite 1215 - The Scotia Tower
Vancouver, BC  V6B 4N9

T (604) 900 2538
F (604) 900 2539

reception@onyxlaw.ca

New Westminster

26 Fourth Street
Suite 100
New Westminster, BC  V3L 5M4

T (604) 900 2538
F (604) 900 2539

reception@onyxlaw.ca

Kelowna

1631 Dickson Avenue
Suite 1100
Kelowna, BC  V1Y 0B5

T (604) 900-2538
F (604) 900-2539

reception@onyxlaw.ca

The information on this website is for general information purposes only. Nothing on this site should be considered legal, financial, tax, medical, or any other professional advice.

Powered by GLP Marketing

Copyright © Onyx Law All Rights Reserved