RS, Re (Forced Marriage Protection Order)

Capacity to marry is decision-specific and requires understanding of the nature of marriage and the duties and responsibilities ordinarily attached to it. A person need not understand every detail, but must be able to comprehend and weigh the salient matters, including mutuality, reciprocity and compromise. Capacity to consent to sexual relations must be assessed under section 3(1) of the Mental Capacity Act 2005, by considering understanding, retention, use or weighing, and communication. An overseas marriage entered into by a person lacking capacity will usually require a declaration of non-recognition, but the court retains a discretion. That discretion may exceptionally favour recognition where justice, fairness and autonomy require it; such cases are likely to be rare.

Luton Borough Council sought a forced marriage protection order after learning that RS, a 25-year-old man with intellectual disability and autism, had undergone a marriage ceremony in Pakistan. The proceedings were continued under the inherent jurisdiction. The issues were whether RS had capacity to consent to sexual relations and marriage, whether he might gain that capacity, and whether the court should declare that the Pakistani marriage was not recognised in England and Wales.

The evidence addressed RS’s ability to understand and weigh sexual risks, fidelity, the marital relationship and its legal consequences. The court also considered the effect of the Family Law Act 1996, the Mental Capacity Act 2005 and the discretionary nature of recognition of overseas marriages.

1. Capacity to consent to sexual relations. The court applied section 3(1) of the Mental Capacity Act 2005, requiring consideration of understanding, retention, use or weighing, and communication. The assessment was issue-specific rather than person-specific. RS knew aspects of the mechanics of sex and had some awareness of babies, condoms and infection, but could not make the necessary connections between sex and its risks or consequences. He therefore lacked capacity to consent to sexual relations, including at the date of the marriage. Re M (An Adult) (Capacity: Consent to Sexual Relations) [2015] Fam 61 was applied.
2. Capacity to marry. Capacity to marry required understanding of the nature of the marriage contract and the duties and responsibilities ordinarily attaching to marriage. The test was not set so high as to exclude persons with limited capacity, but the individual had to comprehend and weigh the salient matters. Mutuality, reciprocity, compromise, fidelity and the continuing nature of the relationship were essential considerations. RS’s concrete perspective and inability to understand these abstract and relational concepts meant that he lacked capacity to marry. The guidance in Re E (An alleged patient): Sheffield City Council v E [2005] 1 FLR 965 and LBL v RYG [2010] EWHC 2664 (Fam) was applied.
3. Prospect of gaining capacity. The evidence did not establish any real prospect that RS would gain capacity to consent to marriage or sexual relations. The possible value of sex education remained unsettled and could be reviewed, but it was unlikely to affect capacity.
4. Recognition of the overseas marriage. Section 58(5) of the Family Law Act 1996 prevented the court from declaring that the marriage was void from inception. The forced-marriage provisions did not create a new power to terminate a marriage outside the framework of the Matrimonial Causes Act 1973. The question was therefore recognition, not validity. Although the court retained a discretion, the absence of capacity, the lack of mutuality and the legal obligations imposed on RS made recognition inappropriate. The declaration of non-recognition was granted. Such a discretion might prevail in exceptional circumstances, but none existed here.