Sheffield City Council v E & Anor

Capacity to marry is assessed generally, not by asking whether a person can understand the risks or implications of marrying a particular individual. The person must understand the nature of marriage and the duties and responsibilities normally attaching to it. Marriage is a simple contract and does not require a high degree of intelligence.

Capacity is distinct from the wisdom of the proposed marriage. The court cannot decide whether marriage, or marriage to a particular person, is in an adult’s best interests. If the adult lacks capacity, neither the High Court nor the Court of Protection can supply consent. The relevant responsibilities are mutual and reciprocal. They typically involve a shared home and domestic life, exclusivity, and each spouse’s entitlement to the other’s society, comfort and assistance.

A local authority commenced proceedings under the High Court’s inherent jurisdiction concerning a vulnerable 21-year-old woman. It alleged that she lacked capacity to decide where to live, whether to associate with an older man who had committed serious sexual offences, and whether to marry him.

The woman and the man contended that capacity to marry had to be assessed by reference to marriage generally. The local authority argued that it should be assessed in the context of the particular proposed marriage and the woman’s ability to understand the risks posed by the intended spouse.

The court determined as a preliminary issue the legal definition of capacity to consent to marriage and the questions which should be put to the experts. It also considered the relationship between litigation capacity and capacity concerning the subject matter of proceedings.

1. Preliminary issue determined in favour of the defendants. The experts were to be asked whether E understood the nature of marriage, the responsibilities created by it and the giving of valid consent generally. They were not to assess whether she had capacity specifically to marry S.

2. Every adult is presumed to have capacity, and the party alleging incapacity bears the burden of proof. Capacity is issue-specific. A person may therefore possess capacity for one transaction or decision while lacking it for another.

3. The governing question was whether E could understand the nature of the marriage contract and the duties and responsibilities normally attaching to it. The test stated in In the Estate of Park deceased, Park v Park [1954] P 112 remained authoritative. Awareness of the ceremony or its words was insufficient, but marriage was a simple contract which did not demand a high degree of intelligence.

4. Capacity to marry was general rather than spouse-specific. The nature and legal consequences of marriage did not change according to the identity or characteristics of the proposed spouse. The emotional, social, financial or personal implications of choosing one spouse rather than another concerned the wisdom of the decision, not capacity.

5. The duties and responsibilities of modern marriage were mutual and reciprocal. Marriage conferred the status of husband and wife and involved an agreement to live together and love one another as spouses, to the exclusion of others. It typically involved a common home and domestic life and reciprocal rights to society, comfort and assistance. Historical descriptions based on a husband’s protection and maintenance and a wife’s submission no longer reflected contemporary marriage.

6. The court had no jurisdiction to decide whether marriage, or marriage to S, was in E’s best interests. The inherent declaratory jurisdiction could not supply consent for an adult lacking capacity. The doctrine of necessity could authorise treatment, residence or contact arrangements without consent where appropriate, but it could not create a valid marriage. If an adult lacked capacity to marry, no court could consent on that adult’s behalf.

7. Litigation capacity and subject-matter capacity were separate, issue-specific questions. Different answers were legally possible. Nevertheless, only unusual circumstances were likely to justify finding that a person possessed capacity to conduct litigation about a matter for which that person lacked decision-making capacity. Any finding that E lacked subject-matter capacity would therefore require reconsideration of her litigation capacity.

1. High Court (Family Division): The court determined a preliminary issue concerning the legal test for capacity to marry. Earlier interim orders had prohibited the proposed marriage without leave, directed expert assessment and declared that E had capacity to litigate. The final determination of E’s actual capacity remained listed for a later hearing.