The changing social landscape has brought forth a new kind of marriage trap – the predatory marriage.
The aging population combined with the changing social patterns of marriages, re-marriages and multiple marriages in the face of dependency, frailty, vulnerability, and the diminished capacity of our older adults, is creating new legal and societal challenges.
The link between mental capacity in marriage, and the requisite capacity to contract marriage on the one hand; and estate planning considerations and spousal property rights on the other hand, are no longer in sync.
Not a new, but rather a developing phenomena, are marriages that I will describe as “predatory” in nature. This phrase “predatory marriages’ I submit will be common place within a short period of time.
These are marriages entered into for a singular purpose of exploitation, personal gain, or profit, by unprincipled, unscrupulous individuals with one goal in mind, and that is to take advantage of the vulnerable, dependent, elderly, cognitively impaired, and those unable to appreciate the consequences of certain actions or inactions.
Marriage is a relationship which may provide comfort and security, particularly, amongst older, vulnerable adults. However, with marriage comes legislated property rights. If the older adult is not capable of understanding the property rights which flow from the contract of marriage, then how can we consider that marriage to have been convened with the requisite capacity? Currently the relevant offending legislation in Ontario, the Succession Law Reform Act, has the effect of revoking a Will on marriage. If an individual lacks the requisite testamentary capacity to cause a new Will to be executed, than chances are the lifetime estate plan put into effect during a period of capacity is irreparably damaged. Accordingly, while case law dating back to the 1800’s seems to suggest that the capacity to contract marriage is one of simplicity, clearly this is not the case when significant property rights now attach to the institution of marriage.
In the Supreme Court of Canada case of Nova Scotia (Attorney General) v. Walsh,  4 SCR 325, the Justices described marital status as only being acquired through the expression of a clear, free and personal choice…the decision to include the acceptance of various legal consequences incident to the institution of marriage. Accordingly, marriage is more than a simple relationship providing security. There are legal consequences inherent in marriage. Undue influence means there was no free and personal choice.
We are seeing marriages between persons with a significant age difference taking place unbeknownst to their friends and family through intentional alienation, under suspicious circumstances with attendant detrimental and unintended consequences.
Public policy mandates that marriages should not be lightly set aside. Yet, unfortunately many older Canadians fall prey to the unscrupulous. Our society should be alert to exploitation on many fronts including within the context of marriages taking place later in life, possibly under exploitive circumstances.
Marriage may bring emotional gratification, but that does not justify our society and our law makers turning a blind eye to the egregious legal consequences attendant where there is a “predatory marriage”.