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Do You Need to Be Mentally Competent to Get Married?

Nowadays, the prevalence of dementia and diseases such as Alzheimer's is high, and this can make people vulnerable to predatory marriages. Everyone should have the right to find happiness in marriage, but it's important to consider that marriage affects not only happiness, but also a person's children, property, finances, and wills.

Our society generally accepts that it is a person's right to make a poor decision about their own life -- as long as they have the mental capacity to understand the consequences. In theory, there is a clear ethical problem with marrying someone if they can't understand what they are doing. In practice, however, brain decline happens gradually and it's difficult to establish at what point a person can no longer make their own life decisions.

The law requires a person to meet a certain level of mental capacity to get married, retain legal counsel, or make a will. However, for marriage the law requires a lower level of competence, with courts often referring back to an 1885 English case, Durham v. Durham, where the judge held the view that "the contract of marriage is a very simple one, which does not require a high degree of intelligence to understand." There is a trade-off between protecting a vulnerable individual and letting them keep their dignity and independence, and generally the courts have gone with the latter.

There have been, however, a few cases more recently where marriages were overturned. One example in BC was Donna Walker's marriage to Floyd Poulain. The marriage occurred several years after Ms. Walker's Alzheimer's diagnosis, and the only witnesses were family members of the marriage commissioner. Prior to her illness family members recalled Ms. Walker saying she would never get married again. Mr. Poulain met her about a year into her illness, and claimed to be unaware of its progression, despite her family and friends testifying that she had noticeably declined to the point of forgetting such basic things as how to use a phone, cutlery, or her keys. It's unclear whether strange financial decisions such as withdrawing large sums of money or attempting to list and sell her condo were the result of Mr. Poulain or her confusion. However, irrespective of Mr. Poulain's motives, there was enough evidence of her decline that in 2017 the court ruled to void the marriage along with two wills made during later stages of her illness.

Another 2017 case in Ontario debated the marriage of Kevin Hunt and Kathleen Warrod. Mr. Hunt had received extreme brain injuries due to an ATV accident, and three days after his release from the hospital, Ms. Warrod and some of her family members picked Mr. Hunt and she married him without alerting anyone else. They had been involved in an on and off relationship prior to the accident, but Mr. Hunt had expressed that he did not want to marry her, in part due to her excessive drinking. Doctors, friends and family who had seen Mr. Hunt testified that he had significant cognitive impairment from the accident to the point where he could not make decisions about his life. The marriage was voided and a court order was made prohibiting contact between the two participants.

For situations like this, the onus of proof is on the party trying to show mental incapacity. After the fact, it is very difficult to demonstrate that a person was incompetent for marriage, and these cases were lucky as they had compelling evidence both from medical practitioners and friends and relatives. Mental capacity is a difficult topic that should be taken case by case, but situations like this do highlight the importance of having difficult discussions about power of attorney and wills prior to the time they are necessary. It shows that it is important to plan ahead when diagnosed with diseases like dementia, and perhaps shows that marriage is not as simple of a contract as it seems.

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