Capacity to marry

An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing staff, medical staff and other professions rely on when caring for patients.

In clinical life we are acutely aware of the need to establish that our patient has capacity to provide consent; both for treatment, and for the sharing, if necessary, of their confidential information. A recent judgment considered an equally momentous decision: Has a person the capacity to agree to marriage? Is this decision spouse-specific, or does it relate to marriage in general?

After all, life goes on outside medicine.

EKK (1) is of Scandinavian heritage, suffering from vascular dementia, depression, hoarding disorder and mild cognitive impairment. Now in her early eighties, she has lived in England for decades, having been previously married, with two children. In the last ten years she had met ID, a man who is in his sixties. EKK ‘…enjoys a great deal a sexual relationship she has with ID’…. expressing for some time her wish to marry him….to the extent that in 2025 the Stockport Registry Office was booked for their marriage but postponed at the behest of the local authority. But he continues to visit her daily. The judge noted that EKK has ‘…expressed the view that she intends to marry ID whether or not I agree she has the capacity to do so.’

The case first came before the judge, Mr Justice Trowell in June 2025, when he made declarations that EKK lacked ‘…capacity…to make decisions as to where she lives, to make decisions as to her care and support she received and to make decisions about the clearing and storage of her belongings. At the same time, I made a declaration that she had capacity to engage in sexual relations.’

Previously, EKK’s social workers had decided that she lacked the capacity to marry, and the local authority urged Trowell J first to formulate an appropriate test; and then later, using that test, to determine her capacity to marry.

A court-appointed expert witness (a clinical neuropsychologist) reported that because of an impairment of or a disturbance in the functioning of EKK’s mind, she lacked the capacity to make decisions about ‘…the care she received, her residence, cleaning and rendering her house habitable, contact with others, managing her property and affairs…’ but that she could make decisions relating to entering into marriage and sexual relationships. It might be construed as curious; the notion that on one hand EKK could not make decisions relating to contact…whilst ‘…at the same time … she had capacity as to whether or not to marry.’

Notwithstanding this apparent contradiction, the judge set about the task of formulating ‘…whether the matter upon which EKK may or may not have capacity to decide is

(i) Whether to marry; or

(ii) Whether to marry ID.’

Counsel for the local authority noted that ‘…in these circumstances, where there is a known person, it is a nonsense to not consider the concrete question of marrying (that) particular person and instead consider an abstract capacity to decide to marry per se.’

The judge found this to be a ‘…common sense and practical point ... namely to define the test as a practical one… (the marriage to ID), rather than the abstract one, (marriage in general).’ But on reflection, he noted that what was being assessed when pondering on capacity to enter a marriage was ‘capacity to understand the nature of marriage.’ Not whether a person can comprehend the implications of a particular marriage. Such an assessment of implications is different from assessing capacity to marry. He concluded that a person ‘…needs to have capacity to understand what marriage is. If P does have that capacity, it is not for the court to evaluate the person they wish to marry, to do so would be an overreach of the court’s role.’

Accordingly, at a separate future hearing, the question, or test, to be considered will simply be: Does EKK have capacity to decide to marry?

Sadly, the case report provides no postscript, as to eventual outcome.

(1) Stockport Metropolitan Borough Council & EKK [2025] EWCOP 42

Mr Robert Wheeler
Department of clinical law
September 2026