Love and Marriage, more or less than a legal contract?

by Anna Raccoon on January 29, 2013

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Nietzsche, the German philosopher, said that marriage was ‘the will that moves two to create the one which is more than those who created it’.

Throughout history, human beings have ignored the cold words of the law, and imbued marriage with a sometime spiritual, sometime quasi-mystic quality that transcends the requirements of the 1753 Marriage Act and its later versions. Christians believe that marriage is a gift from God, one that should not be taken for granted. Non-believers will return to church for the first time since they were carried there as a bawling, squalling, infant for baptism to see their union blessed by God’s earthly representative. Even those who have married in civil ceremonies that do not contain the ‘to have and to hold from this day forward, for better for worse, for richer for poorer, in sickness and in health, to love and to cherish, till death us do part’ words will refer to themselves as being joined in ‘holy matrimony’ even though in law, they have done little more than sign up to a bundle of legal contracts that could have been processed in any solicitor’s office.

WE think that marriage is more than its legal consequences. We may joke about it, we may complain about its strictures, but those of us who have signed up to it, including those homosexual couples not currently permitted to sign up to it, believe that it is more than a mere collections of legal strictures. Were it otherwise, we should have taken ourselves to the nearest solicitor’s office and defined a legal contract to suit our needs.

Why do we dress up in unaccustomed clothes, spend money we can ill afford, stress over wedding lists and guest lists, fall out with family members, and then take two weeks off work to battle through Heathrow airport that we might lie on a third world beach and recover from it all? Why don’t we just visit a lawyer? Why is the gay community so determined to be allowed ‘to marry’ rather than settle their financial and property affairs via a civil partnership? There is an unspoken dimension to marriage over and above its legal consequences, that is why; perhaps it is only in our minds, but it is no less powerful or valuable for that.

I have been pondering this question all week since reading a transcript of a recent hearing in the Court of Protection that concerns marriage. My least favourite institution, that decides behind closed doors, whose child shall live and whose die; who may have sex, who may have children, indeed, who may live themselves, and who die – has been pondering the question of Marriage. We used to leave these matters to choice, or God where appropriate, or fate even if you prefer; but since the brave new world of the Mental Capacity Act 2005, where we apparently had our autonomy extended to allow lawyers to decide these things for us, marriage has been dissected by the cold eye of the law.

The case refers to the couple as JK and SK, I shall call them Jane and Sam, for ease of reading the arguments. Since the case is not yet available on the free Bailii service, I have put it here for the benefit of those who do not have access to lawtel or similar.

Jane and Sam met as teenagers, some 35 years ago; they enjoyed a teenage romance for around a year. Subsequently Sam was to marry twice more, and Jane just the once. Following the breakdown of his second marriage, Sam went to live with his Mother. He was drinking heavily; it is unclear whether this was the reason for the second divorce or as a result of it.

Late in December 2006 Sam fell heavily whilst at work. He suffered a serious head injury, it was the following year before he was discharged from hospital to his Mother’s home, and it was his younger brother who acted on his behalf to finalise his divorce arrangements from wife no.2.

Once back at home, Sam looked up his teenage lover, Jane, and rekindled their relationship. He would spend several nights a week at her home, but was still drinking heavily, and the relationship was ‘difficult’. He was admitted to hospital for alcohol misuse. They discussed marriage, but for one reason and another, it never came about. It would be fair to say that his family must have been exceedingly worried for him – as was Jane, although their relationship was put on hold for a while.

In the November 2008, Sam was hit by a bus. He suffered a second serious head injury. Jane heard of his accident and immediately went to the hospital. She has visited him there on a ‘more or less daily’ basis ever since – four long years to date. I don’t think anyone can doubt her commitment to Sam’s well being.

One year later, Sam was moved to a neuro-disability unit near to his Mother’s home. His Mother and his brother visit him there ‘regularly’ – though no mention of a ‘more or less daily’ basis, as are Jane’s visits.

The sequel to these events was to cause severe division within the family and those who cared about Sam. When reading through the next part of this post, I would ask you to consider how many of you have family who truly agree with your (a) choice of partner and (b) the manner in which he or she cares for you. Many a Christmas Lunch has ended up on the wall as the debate on these matters is fuelled by alcohol. It is a fortunate family indeed that manages to escape such divisive views.

From reading the case, I cannot discern any suggestion that Sam himself is aware of what has been said by those who care for him; I have therefore read his replies to the various questions as being made without full knowledge of the importance to which they are being put. This would be considered normal by the Court of Protection – once someone is deemed not to have capacity to conduct their legal affairs, as ‘a patient’ they cease to be consulted as a matter of course.

So, what happened? One version of events is that Sam and Jane continued their daily conversations, as do normal couples, and decided to get married. They were aware that Jane was not always flavour of the month with his Mother or his brother, and so they didn’t tell them of their plans. Not that the marriage was a total secret – Jane had engaged an independent advocate for Sam. She (presumably) felt that he needed an independent voice to deal with his new life, not necessarily that of his Mother or his brother. He was, after all, a man of 55 by this time. I can sympathise with how this news must have been greeted by Sam’s Mother and brother – it would be an unusual Mother who didn’t imagine she knew best what was right for her son. However, at this stage, they knew nothing of the appointment of the independent advocate. Shall I call him Robin rather than Mr R?

Robin has been an advocate for mentally incapacitated individuals for about 16 years and is a former Assistant Director of a Social Services Department. He does have a professional background, hardly a lay volunteer. He works through the Representational Advocacy Unit of the local Citizens Advice Bureau.

Robin had several conversations with Sam and Jane. During those conversations he became aware that they wished to marry – and he was of the opinion that Sam had the necessary capacity to contract a marriage. The level of capacity to contract a marriage is considerably lower than that required to handle ones financial affairs.

Robin also became aware that Sam and Jane didn’t want to involve his family – the reasons he was given as to why are not recorded, but as Sam’s advocate, his job was to reflect what Sam wanted.

Jane wrote to the Principal Registrar in their local town and expressed her desire that she and Sam should be married there. Importantly, she told the Registrar of Sam’s brain injury, and that he had been assessed as lacking the capacity to handle his financial affairs or to decide where he lived.

She didn’t disclose that six months earlier a neuro-surgeon had given his opinion that Sam did not have such capacity. She left it to the Registrar to decide for herself. The same neuro-surgeon had said:

When interviewing SK on 29th April 2010 Mr.Gentleman had asked him what he understood by ‘marriage’ and he says that SK immediately described it as ‘a relationship between two people who share their lives, make plans together and live together’. In his oral evidence Mr. Gentleman said that up and until that question SK had been hesitant and incomplete in his responses, but it was as if the word ‘marriage’ triggered something off, with SK giving his answer (as it seemed toMr. Gentleman) “…off pat, in a very clearly expressed and well constructed sentence”. […] Mr. Gentleman spoke of SK having ‘a good social façade, day to day communication skills, and the ability to recognise individuals even if he could not name them’.

Four months after the wedding, the same neuro-surgeon said:

When Mr. Gentleman asked SK how he might handle a large sum of money he replied at once that he would ‘invest it wisely and safely’, sounding to Mr. Gentleman like something which SK had been taught or primed to say.

Yet then goes on to say:

He described SK’s ability to retain even simple information and use it as part of a reasoning and decision-making process as ‘very poor’.

So on the one hand he thinks Sam can’t retain even simple information, yet when Sam gives a perfectly reasonable answer to a question, he thinks that this is ‘retained information’ that he is ‘able to reason’ is the correct response to that particular question? When cross-examined, it seems he was more used to Scottish law and not aware of the English case law on capacity to marry.

However, I am getting ahead of myself. Sam and Jane were booked to get married. A week before the wedding,  Sam once more required surgery for a bladder operation. Both the Surgeon and the anaesthetist were happy to accept that Sam had the necessary capacity to consent to intrusive surgery and didn’t feel the need for recourse to the Court of Protection for permission.

A week later, Sam and Jane went to the Registrar’s office and were married by the fully experienced (and aware of Sam’s brain injury) Deputy Superintendent Registrar. Sam’s family were not aware of the marriage until Sam’s advocate, Robin, telephoned his Mother three weeks later. She was ‘extremely upset’.

Relations deteriorated rapidly between Jane and her now Mother in Law, and the Mother and Sam’s brother, who I assume got the blame for not keeping big brother out of ‘woman trouble’.

By the following February, relations were at an all time low, and Jane refused to attend a meeting to decide which care home Sam should live in on the grounds that his Mother and his brother would be at the meeting. Instead, she took Sam out for the day – and didn’t return him. She took him home to live with her.

It was by any standard, a brave decision, and not one taken in total ignorance. She was, prior to all this, a specialised support assistant for those with learning disabilities. I am well aware of the enormous stress placed on anyone who cares for someone with a brain injury in a home situation. It is an unenviable job, and one I would suggest that is only possible with a great deal of care and love for the person concerned. There are few rewards.

Robin, the advocate, visited Sam at Jane’s house and returned to the residency meeting to read a statement on his behalf:

[…]in which SK was reported to have wanted the meeting to be told: (i) that he did not want to attend, as he already knew the outcome (regarding residence) since the professionals were not interested in his best interests but their own (I paraphrase); and (ii) that he did not want to see his brother CK at the meeting. This caused a verbal brush at the meeting between Mr. R and CK, who said he did not believe SK would have said such a thing. The Local Authority were concerned over that weekend that JK was not returning SK to the placement, as he did not have his medication with him and they were not satisfied with the ‘aids’ available for him at JK’s home. When social worker Miss Carney and an Occupational Therapist attended there, JK was reluctant to give them access. They wanted to see SK on his own to try to ascertain his wishes and feelings about moving from the placement like this, but JK refused to let them do so. This led the Local Authority to commence proceedings in the Court of Protection and an interim order was made on 9th February 2011 requiring, in effect, that SK be returned to the placement. JK duly complied with that order.

 It is not hard to imagine that by this time the family must have imagined that Jane was the Devil’s spawn, she had not only married their darling son, she had had the nerve to imagine that she could love and care for him too.

So it was that in November this year, the Court of Protection was asked to rule by the Local Authority and Sam’s Brother, with the Official Receiver acting for Sam, that the marriage should be annulled. Never existed. Meaningless.

There are several points to consider before making your mind up whether the marriage itself should be annulled.

1) Sam is under the auspices of the Court of Protection; that means that any financial benefits that might accrue to him as a result of his accidents will be held by the Court of Protection who will employ a specialist solicitor to oversee each and every bill paid on his behalf. The money would NOT be handed to his wife, even if they had been married for 50 years.

2) One of the first duties of such a specialist solicitor will be to draw up what is called a Statutory Will for Sam. Such a Will would reflect the fact that Sam has a son from his second marriage and make provision for him.

3) True, if such a statutory Will was made, and if Jane was still married to Sam, then provision would have to be made for her future, as well as bequests to his Mother and his brother – but we are talking about the situation if and when Sam dies. The decision that the marriage should be annulled has allegedly been taken ‘in his best interests’, which is only applicable whilst he is alive.

4) It is an unusual marriage; more ’in sickness and in ill-health’ than anything more optimistic. Is that not a time when we need the comfort and security of a loving partner more than ever? What exactly is the effect of a marriage, now that we have discounted the financial aspect, that it is in Sam’s ‘best interests’ NOT to have?

5) In view of the fact that Sam has been in care more or less continuously since the marriage occurred, I am assuming that the marriage has not been consummated. It should be none of our business, but someone is bound to bring up non-consummation as a factor. As far as I can discern, non-consummation of a marriage has never been grounds for annulment except where that non-consummation has been wilful. Scarcely applicable in this case.

6) Much has been made of Sam’s answers to various questions as to who visited him, how often, and what provisions he thought it reasonable to make for his son. Since it would appear that Sam is unaware (see opening comments) that these questions are being posed with a view to annulling his marriage, then I am reading his answers in line with his stated view that his family should not be aware of the marriage.

7) Whilst Sam is in hospital, Jane holds an automatic ‘right’ to visit him as his ‘next of kin’ – that would not be so should the marriage be annulled. Common law partners, girlfriends, and friends in general do not have automatic access to hospital patients. The ‘family’ would revert to legal ‘next of kin’ – given that they are now all at loggerheads, how likely is it that they would allow Jane to continue to visit Sam daily – or at all?

Mr Justice Bodey’s summation of the case is precise, detailed, and careful – yet reading it, one is struck by how much emphasis is placed on the consequences of marriage, both legal and financial; as though marriage was merely a financial trap into which the unwary might accidentally trip. There is surely many an embittered divorcee who would agree with that view – but there is no counter balancing argument in favour of the advantages of marriage, the companionship and support, the security of mind, the public commitment and status accorded to husband and wife. The very things that the Gay lobby have been fighting so hard to be allowed to have themselves. One arm of Her Majesty’s Government appears poised to give it to them – whilst Her Majesty’s Court deliver a ruling that considers no more than the legal and financial components of a Civil Partnership.

I will pose the question once again. Is marriage something more than a bundle of legal contracts that dictate who is entitled to a share in the ‘family fortune’ and who is a legitimate heir. Does marriage have some intrinsic worth that Sam – and Jane – are to be denied. How are Sam’s ‘best interests’ harmed by having a dedicated and caring spouse visiting him daily?

You tell me!

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