“Is the test for capacity to cohabit the same as the test for capacity to marry?”

9 May 2013 by

mentalhealthPC (by her litigation friend the Official Solicitor)[1] and NC [2] v City of York Council [2013] EWCA Civ 478 – read judgment

It may seem strange that the same individual, with learning difficulties, can be considered to have capacity to marry, but not the capacity to decide whether to live with the person they have espoused. What, in essence, is marriage, that puts it on such a different footing to informal cohabitation?

The question arose because the woman in question (PC) had married NC after he had been convicted and sentenced for serious sexual offences.  She had briefly cohabited with the him before he was convicted and married him in 2006 while he was in prison.  He was due for release on licence in 2012. It was common ground that he posed a serious risk to PC in her capacity as a cohabiting wife. The local authority obtained a declaration from the Court of Protection ([2013] Med LR 26) that although PC had had capacity to marry and to understand the obligations of marriage, she did not have the capacity to decide whether to cohabit with NC upon his release. What Hedley J said was this:

She is undoubtedly within section 2(1) [of the Mental Capacity Act] requirements of impairment. Applying the section 3(1) test I am not satisfied that she is able to understand the potential risk that NC presents to her and that she is unable to weigh the information underpinning the potential risk so as to determine whether or not such a risk either exists or should be run, and should, therefore, be part of her decision to resume cohabitation. 

The first appellant and second appellants appealed against the Court of Protection’s decision.  The appeal was based on the following grounds:

i. The judge wrongly identified the issue for determination as being whether PC had capacity to ‘resume married life’, rather than by reference to the established domains of care, contact and residence. As a result the judge conflated the relevant issues;

ii. The judge failed to give proper weight to the fact that PC and NC had contracted a valid marriage in 2006 and there had been no relevant change in circumstances since that time to bring the validity of the marriage into question;

iii. In any event, the judge wrongly applied a person-specific, rather than an act-specific, test in determining capacity.

The Court of Appeal’s judgment

The appeal was upheld, but only in part. McFarlane LJ found that the appellants had failed to establish any justification for interfering with Hedley J’s finding of lack of capacity. However, the Court concluded that if PC had capacity to marry she must be taken to have capacity to decide to perform the terms of the marriage contract. Any finding to the contrary required clear and cogent evidence. Such evidence was lacking in the present case and the finding that PC was unable to make this decision had simply not open to the judge below.

The statutory test for capacity was “decision”-specific, rather than being “person”- or “act”-specific. Therefore, although the specific identity of any particular spouse was irrelevant to determining capacity to marry, the factual context of the proposed marriage had to be taken into consideration in order to produce a meaningful conclusion about capacity. In that respect, the judge below had taken a sound approach. Although there was clear and settled authority that capacity to marry was act-specific rather than person-specific, there was nothing in the key authority, Sheffield City Council v E [2004] EWHC 2808 (Fam),  to indicate that the test was to be either one or other of those approaches for all decisions; Sheffield, in fact, supported a decision-specific approach. Therefore, the reference in s.3(1)(a) to the ability to “understand the information relevant to the decision” had to include information which was specifically relevant to the particular wife and the particular husband.

The court’s jurisdiction was not founded upon professional concern about the outcome of an individual’s decision; it could only “protect” if mental capacity was lacking. The judge below had approached the statutory scheme as though s.2(1) and s.3(1) were separate tests, rather than affording central prominence to s.2(1). Finding, as he did, that PC had had capacity to marry, he needed to expressly state the evidential basis on which he found that she did not have capacity to understand the risks which her husband presented. The danger in his approach was that the strength of the  causative nexus between mental impairment and inability to decide had been “watered down”:

The danger in using s 2(1) simply to collect the mental health element is that the key words ‘because of’ in s 2(1) may lose their prominence and be replaced by words such as those deployed by Hedley J: ‘referable to’ or ‘significantly relates to’.

If PC had capacity to marry, then in the absence of clear and cogent evidence to the contrary, she had to be taken as having capacity to decide to perform the terms of the marriage contract. The judge should also have spelt out how and why her mental impairment did not rob her of capacity in other aspects of her life, yet caused an inability for her to decide to live with her husband. He had not given the explanations required by s.2(1) and his decision had to be set aside. Lewison LJ observed, in his concurring judgment, that it was easy to understand the responsible professionals’ view that it would be “extremely unwise” for PC to cohabit with her husband,

but adult autonomy is such that people are free to make unwise decisions, provided that they have the capacity to decide.

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3 comments


  1. frednach says:

    As I understand it, if two people have the capacity to marry, it is irrelevant whether they can have they capacity to co-habit for marriage is cohabitation. But I summise that the essential issue underlying this case is whether a party should be ‘protected’ where s/he does not have the capacity to make a sound judgement at a time in future reflecting a change of circumstance calling their cohabitation into question. Of course, there should be protection precisely because the party does not have the mental capacity, and therefore pose a risk as to safety and well being. That aside, presumably in this case the state authorities would nonetheless complete risk assessment and care plan post release given the factual circumstances, but ultimately in the absence of any capacity issue, the parties must be permitted their choice as to whether to live together or otherwise, after all they have a right to family life whatever the prevailing circumstances or however unwise that might be with the parties exercising a choice where required as to separation, divorce or other wise such intervention by the state is clearly unjustified.

  2. We none of us know for sure, what the person we decide to live with is capable of. Marriage is an unknown quantity for all. Only when you live with a person do you get to know them in ALL their moods. If a person is considered able to commit to marriage, he/she should be allowed to exercise that freedom of will. In the case of the vulnerable, surely safeguards can be set in place to help when and where necessary, or have we descended completely into the black abyss of the police/nanny state where ‘Big Brother’ knows best – like it or lump it?

  3. Amit Malik says:

    On the basis of the above mentioned commentary and without being pedantic,I think the test for the assessment of the capacity, remains the same whether it is for marriage or cohabitation, however the decision may change, which may require a new test to be performed. Change of decision may indicate that the nature of the information about the decision changes as well, which will require the performance of the same test as mentioned under s.3(1)MCA. In the absence of any correlation between cohabitation and marriage, my opinion is that the decision to cohabit is not the same as decision to marry. However, in my opinion, if marriage has been performed then cohabitation is part of that decision making, and if the person making the decision has the capacity to marry then the person has also decided to cohabit. If there are doubts about capacity of the person entering into a nuptial arrangement, then this is a counter-factual question and must be proved that the person making the decision at the relevant time lacked capacity, and could not have entered into that arrangement and therefore parties entering into the arrangement must be placed in their original position. However, in the present circumstances, it appears that this was not the case, as it was cohabitation which was called into question and not dissolution of marriage. Capacity to cohabit is part of and subsequent to capacity to marry, therefore in my opinion the Court of Appeal was right to upheld the appeal.

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