Capacity to Marry

Mental Capacity Assessment for Marriage and Sexual Relationships

What is a Capacity Assessment for Marriage?

A Capacity for Marriage Assessment is a way of ensuring that an individual is able to enter into the marriage contract.

For a while now, capacity to marry has been seen as being inseparable from capacity to engage in sexual relationships and the ruling of Re DMM (2017) reaffirmed this. Part of threshold of understanding for capacity to marry is a person’s capacity to engage in sexual relationships. This means that when we assess for capacity to marry we will also assess for capacity to engage in sexual relationships.

It should be noted that it is possible to assess solely for capacity to engage in sexual relationships without capacity for marriage, but not the other way round.

What is included in a Marriage and Sexual Relationships Mental Capacity Assessment?

Our Capacity Assessments for Marriage and engage in Sexual Relationships include all the necessary preparatory work and organising the technical side of a remote assessment via video link, the Assessment, a written report and reading time.

What case law do you use?

The primary piece of case law is Southwark v KA (2016) and this has been reaffirmed by Re DMM (2019) as well as Mundell v Name 1 (2019). In essence the criteria for capacity to marry is:

  • Capacity to engage in sexual relationships.
  • The ability to understand a concept of and the necessity of one’s own consent is fundamental to having capacity: in other words that P knows that they have a choice and can refuse.
  • The ability to understand the nature of the marriage contract.
  • The duties and responsibilities attached to marriage.

What happens in the assessment?

The assessment will take place via video link through the use of a smartphone, tablet, laptop or computer with webcam. This can take place at the client’s home or at a location they feel comfortable in and comprises of an in-depth conversation. It is not a test.

The assessment will take approximately one hour.

Why is a Marriage and Sexual Relationships Capacity Assessment necessary?

Marriage is considered one of our fundamental human rights and should not be prevented just because an individual may be suffering from a cognitive impairment. However, it is also necessary to protect the vulnerable and ensure that those entering into the marriage contract fully understand what they are committing to.

What happens if a client lacks capacity to marry?

If a person lacks the capacity to marry, they cannot get married and any attempt to do so will be considered a breach of the law and their human rights.

To discuss arranging a Capacity Assessment for Marriage and Sexual Relations, please contact us.