The choice to cohabit

In PC v City of York Council [2013] EWCA Civ 478 the Court of Appeal was asked to determine whether or not PC (a woman with significant learning disabilities) had capacity to consent to cohabit with a man with a history of serious sexual offences, for which he had been imprisoned. The Court decided that she did have such capacity, even though doing so exposed her to a potentially dangerous situation.

In his concurring judgment, Lewison LJ observed that although he could understand the view of the professionals involved that PC cohabiting with her husband would be ‘extremely unwise’, “adult autonomy is such that people are free to make unwise decisions provided that they have the capacity to decide”.

This is a recurring theme in capacity assessments involving decisions regarding relationships, marriage and sex.

The Courts have consistently stressed that the Mental Capacity Act cannot be used as a protective paternalistic device for those making unwise decisions. As legal professionals our instinct is always to act in the best interests of the clients we represent but this cannot extend so far as to prevent them from making decisions which we may ourselves consider to be misjudged or unwise.

Capacity to marry

The test for capacity is time and issue- specific and therefore every area of capacity should be considered individually. For this reason, personal injury lawyers often find themselves representing Claimants who lack the capacity to manage their property and affairs (and so have Court appointed Deputies) but with capacity to marry.

The recent case of Mundell v Name 1 [2019] EWCOP 50 explored this issue, with the Court of Protection having to decide whether a man suffering from a brain injury had the capacity to marry, despite having a financial Deputy. The individual concerned had an estate worth approximately £1.5million following a personal injury claim.

The Judge held that capacity to marry does not involve a high or complex level of understanding but rather that a “rudimentary” understanding of the marriage contract would suffice.

The judgment in this case discussed the legal test for capacity to marry and decided that the assessment is an objective one with reference to the following principles:

  1. Marriage is status specific and not person specific;
  2. The wisdom of entering into a particular marriage is irrelevant;
  • The individual wishing to marry must understand the duties and responsibilities that attach to marriage; and
  1. The individual must not lack capacity to consent to sexual relations.

So, although the primary objective in all cases involving Articles 8 and 12 of the ECHR is to make a decision which serves a person’s best interests, when considering capacity to marry, the Court does not have jurisdiction to consider whether a marriage is in an individual’s best interests or vet a person’s choice of potential suitors.

Ultimately, capacity to marry is not a welfare test and does not involve consideration of whether the marriage itself is a wise decision or likely to last.

Issues regarding capacity to cohabit and to marry arose for a young man with a brain injury case who I recently represented.

Throughout the course of his claim, my client had had a number of relationships within which certain consistent patterns of behaviour were evident. His relationships quickly became very intense, with him inviting partners to live with him within a matter of weeks.

Once cohabiting, these relationships quickly became volatile and strained and my client was quick to propose the idea of marriage.

When his relationships later broke down, sometimes involving physical violence, we typically saw a period of ‘crisis’ in which he became heavily depressed, demonstrated risk taking, chaotic and violent behaviour and needed 24/7 support.

As set out above, it was not for my client’s legal team or the financial Deputy to assess the suitability of this individual’s choice of partners or relationships but there was a very apparent need to act in his best interests regarding the protection of his future financial settlement.

We organised and implemented brain injury support and training for my client’s intended partner to ensure that she better understood the impact and consequences of his brain injury and his resulting need for support.

I also worked alongside Irwin Mitchell’s Family Law team who were initially able to assist my client by preparing a Cohabitation Agreement as he was intending for his partner to move in to a property which he had purchased as part of his settlement. They were then also able to assist with the preparation of a pre- nuptial agreement.

Erin Sawyer, a senior associate in Irwin Mitchell’s family law team has explained the support she was able to offer in more detail:

“Cohabitation Agreements generally deal with ownership of property, any financial arrangements made while the couple are living together and how assets should be divided if the couple were to separate. At present there is no particular set of rules that automatically apply to unmarried couples that live together and in this client’s case, it was felt that it would be in his best interests to enter into a Cohabitation Agreement in order to protect his financial position on his cohabitation with his partner, in the event that they were to later separate. A capacity assessment confirming the ability of the client to give instructions in relation to the Cohabitation Agreement was required to enable us to prepare this on his behalf.

“The client has since become engaged to marry his partner, and so we are in the process of making arrangements to prepare a pre-nuptial agreement in order to protect his financial position in the event of a subsequent divorce, following the parties’ marriage. A separate capacity assessment as to the client’s capacity to give instructions for and enter into a pre-nuptial agreement will be required.

“This is because the issues that the client will need to understand and consider, in the context of negotiating a pre-nuptial agreement are separate and distinct from those relating to the Cohabitation Agreement, as well as being more complex, as it causes a change to a person’s legal status, and exposes the parties to financial claims that could be made in the event of separation and divorce.

“The protection of a pre-nuptial agreement is particularly important in this client’s circumstances, as funds that have been obtained by way of compensation are not automatically ring-fenced from claims on divorce, so a prenuptial agreement can help to avoid arguments in future by giving the parties’ certainty about how they intend to address their financial relationship in the event of a divorce.”

A holistic approach is always in the interests of the injured person. When representing clients with impaired capacity, we should be drawing on expertise not only from their case managers, therapists and medico- legal experts that we work with but also from complimentary legal services, including our Family Law, Public Law and Court of Protection colleagues.

Georgina Moorhead is a solicitor specialising in serious injuries and in particular those clients who suffer from an ABI. She is based in Irwin Mitchell’s Bristol office.