In marriage, civil partnership and prenuptial agreements, capacity is a complex and vital issue. The legal ability to marry, enter into a civil partnership or make a prenuptial agreement depends on a person’s mental capacity, that is, these decisions are made voluntarily and with complete understanding. This article explains what capacity means, how it’s assessed and what it means for marriage, civil partnership and prenuptial agreements.
What is Capacity?
Capacity means a person’s ability to understand and make decisions about legal matters. Under the Mental Capacity Act 2005, a person is presumed to have capacity unless established otherwise. Capacity is decision-specific; a person may be capable of making some decisions but not others.
To have capacity, an individual must be able to:
1. Understand the information relevant to the decision.
2. Retain that information long enough to make a decision.
3. Use or weigh that information as part of the decision making process.
4. Communicate their decision by any means.
If any of these elements are lacking, the individual may be deemed to lack capacity for that particular decision.
Assessing Capacity under the Mental Capacity Act
Capacity assessments should be decision specific and time specific. For example, an individual may lack capacity at one time but regain it later. The assessment is usually carried out by healthcare professionals or legal experts who consider the complexity of the decision and the person’s ability to understand the consequences, especially if the individual lacks capacity due to cognitive impairment or decision-specific circumstances.
The Mental Capacity Act 2005 sets out a two-stage test for assessing capacity:
1. Impairment or Disturbance: Is there an impairment of, or disturbance in, the functioning of the person’s mind or brain?
2. Decision Making Ability: Does this impairment mean the person cannot make a specific decision when required?
If both are met, the person may lack capacity to make that decision.
Capacity to Marry
The legal test for capacity to marry is relatively straightforward compared to other decisions. An individual must understand the nature of marriage and the duties and responsibilities that come with it. This includes the permanence of the union, mutual duties of support and the impact on legal rights for inheritance. Capacity to marry is not based on the characteristics of the future spouse. It is important to note that the threshold for capacity to marry is lower than for other legal decisions. A person doesn’t need to understand every legal or financial consequence of marriage, only the essential nature of the union. For example, understanding how marriage affects a will is not necessary, but understanding that marriage is a legally binding relationship is. The capacity to marry is not person-specific; instead, it is focused on the individual’s understanding of the nature of marriage.
Capacity to Make a Prenuptial Agreement
Unlike marriage, the capacity required to enter a prenuptial agreement is higher. This is because prenuptial agreements involve complex financial and legal consequences that demand deeper understanding.
Financial transparency is key to a successful prenuptial agreement as it ensures both parties fully understand their assets and the implications of the agreement.
To have the capacity to enter into a prenuptial agreement, an individual must:
· Understand the nature of the agreement and its effects.
· Appreciate the financial implications, including what rights they may be surrendering.
· Be free from undue influence or coercion.
If there is any doubt about a person’s capacity to understand these implications, getting a formal capacity assessment before signing such an agreement is recommended.
Challenging Capacity in Marriage and Prenuptial Agreements
Capacity can be challenged in both marriage and prenuptial agreements, often by family members or legal representatives. A marriage can be annulled if it is proved that one party lacked capacity to consent. A prenuptial agreement can be deemed invalid if one party did not have the required capacity when signing.
In such cases, the court will review medical evidence, witness statements and expert reports to determine whether capacity was lacking when the decision was made.
Speak to Lewis Nedas Law if you need advice on capacity
Capacity is key in marriage and prenuptial agreements to protect individuals from making decisions they don’t fully understand. The threshold for capacity to marry is relatively low, the capacity required for prenuptial agreements is much higher due to their complexity and financial implications.
If you need expert advice on capacity, marriage or prenuptial agreements, Lewis Nedas Law’s specialist solicitors are here to help. Contact Giovanni Lombardo today to protect your rights and interests