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‘I Can’t’: Capacity to Marry and the Question of Sex

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Abstract

To some extent the nature of the marriage contract has always been ‘about’ sex. Yet it is only in recent years that sex has become an explicit aspect of the legal test of capacity to marry. This paper explores how that test has been developed by the courts since the late 19th century. Through an examination of the case law it traces the nature of the relationship between sex and the capacity to marry; explores how capacity to consent to sexual relations has become a prominent strand within capacity to marry; and asks whether one effect of that prominence has been to marginalise the necessity for an individual to understand certain other important aspects of the marriage contract when assessing his or her capacity to marry.

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Notes

  1. Lowe and Douglas (2007) at pages 67–68.

  2. Matrimonial Causes Act 1857.

  3. Lowe and Douglas (2007) at page 69. Reflecting the genesis of marriage as both an ‘individual union’ and a vitally important ‘vehicle’ for transferring property the option of launching nullity proceedings was thus open to, for example, relatives whose succession rights are adversely affected by the marriage in question (Stone (1990) at page 6).

  4. The reforms were initially enacted by the Nullity of Marriage Act 1971. This Act was subsequently repealed and its provisions re-enacted in the Matrimonial Causes Act 1973.

  5. Section 12(c) Matrimonial Causes Act 1973.

  6. Unsworth (1987) at page 45.

  7. Bartlett (2001) at page 109.

  8. Section 3(1) of the Mental Capacity Act 2005 provides that an individual lacks capacity in relation to a particular issue if he is unable to (a) understand the information relevant to the decision; (b) retain that information; (c) use or weigh that information as part of the process of making the decision; or (d) communicate his decision.

  9. Mental Capacity Act 2005: Code of Practice, at paragraph 4.33. This was discussed by Munby J in Re MM (an adult); A Local Authority v MM and another [2007] EWHC 2003 (Fam) at paragraphs 79–80. It should, however, be noted that in the recent case of D. County Council v LS [2010] EWHC 1544 (Fam), Wood J was of the view that in the absence of any ‘lacuna’ in the statute he should attempt to construe and apply the 2005 provisions (paragraph 30).

  10. Hunter v Edney, otherwise Hunter (1881) 10 P.D. 93.

  11. Hunter v Edney (1881) at page 93.

  12. Hunter v Edney (1881) at page 93.

  13. Hunter v Edney (1881) at page 95.

  14. Durham v Durham (1885) 10 P.D. 80.

  15. Durham v Durham (1885) at page 81.

  16. Durham v Durham (1885) at page 85.

  17. Durham v Durham (1885) at page 81.

  18. Durham v Durham (1885) at page 82.

  19. Durham v Durham (1885) at page 82.

  20. In the Estate of Park, deceased. Park v Park [1954] P. 89; [1954] P. 112, CA.

  21. In the Estate of Park, dec’d [1954] P. 89, per Karminski J at page 99.

  22. Sheffield City Council v E and another [2004] EWHC 2808 (Fam) per Munby J at paragraph 116.

  23. Sheffield City Council v E [2004] at paragraph 83.

  24. Sheffield City Council v E [2004] at paragraph 109.

  25. Sheffield City Council v E [2004] at paragraph 136.

  26. Moore (1974) at page 205. The tone of this book is particularly notable given Moore’s suggestion that the author, ‘a Mrs Ellis’, could not be described as a ‘conventional’ woman.

  27. Moore (1974) at page 206.

  28. Kane (1995) at page 35.

  29. Foster (1985) at page 5.

  30. Pateman (1988) at page 224.

  31. Although abolishing the sanction of imprisonment for failure to comply with a restitution decree, the Matrimonial Causes Act 1884 did substitute a power for the court to make financial orders instead.

  32. Cretney (2003) at page 146.

  33. Pateman (1988) at page 123.

  34. R v Clarence (1888) 22 Q.B.D. 23. The origins of this common law rule precluding marital rape would seem to be located in a statement made by Sir Mathew Hale CJ, and contained in one of the oldest textbooks in English criminal law: Pleas of the Crown (1736).

  35. Durham v Durham (1885) at page 88.

  36. Durham v Durham (1885) at page 90.

  37. Cannon v Smalley, otherwise Cannon (1885) 10 P.D. 96.

  38. Cannon v Smalley (1885) at page 96.

  39. The Times, 20 March 1885.

  40. Cannon v Smalley (1885) at page 96.

  41. Cannon v Smalley (1885) at page 97.

  42. Theriot (1993) at page 17.

  43. Zedner (1991) at page 11.

  44. Following her admission to hospital Mrs Cannon informed doctors that she was not married, and that Mr Cannon was not her husband: Cannon v Smalley (1885) at page 97.

  45. Durham v Durham (1885) at page 89.

  46. Hunter v Edney (1881) at page 94. Dr George Savage had visited Mrs Hunter 3 weeks after her marriage An acknowledged expert, Dr Savage was superintendent physician at Bethlehem Royal hospital, consulting physician to Earlswood Idiot Asylum, lecturer on mental diseases at Guy’s hospital and editor of the Journal of Mental Science.

  47. Hunter v Edney (1881) at page 94.

  48. Williams (1998).

  49. Williams (1998) at page 29.

  50. Weeks (1981) at page 237.

  51. See, for example, Finch and Summerfield (1991) who describe this concept as the most distinctive feature of mid-twentieth century domestic life (page 7).

  52. Cretney (2003) at page 75.

  53. In the Estate of Park, dec’d [1954] P.89, at page 107.

  54. In the Estate of Park, dec’d [1954] P.89, at page 110.

  55. See, for example, Eekelaar and Maclean (2004).

  56. Giddens (1992).

  57. Smart and Neale (1999) at page 8.

  58. Sheffield City Council v E [2004] at paragraphs 132 and 141(x).

  59. Sheffield City Council v E [2004] at paragraphs 132 and 141(x).

  60. Gaffney-Rhys (2006).

  61. Re SA (vulnerable adult with capacity: marriage) [2005] EWHC 2942 (Fam).

  62. Re SA [2005] at paragraph 11.

  63. X City Council v MB, NB and MAB (By his Litigation Friend the Official Solicitor) [2006] EWHC 168 (Fam).

  64. X City Council v MB, NB and MAB [2006] at paragraph 30.

  65. X City Council v MB, NB and MAB [2006] at paragraphs 4–5.

  66. As MAB was a patient within the meaning of the Civil Procedure Rules 1998, he acted by the Official Solicitor as his next friend. The specific issue of capacity to consent to sexual relations was regarded as a matter which might potentially arise in the future—if, for example, MAB’s parents sought to alter the court’s ruling at a later date (paragraph 52).

  67. Morgan (1991) at page 128.

  68. See, for example, Lewis (1990) and Hammerton (1992).

  69. Weeks (1981) at page 26.

  70. R v R (Rape: Marital Exemption) [1991] 4 All ER 481, HL.

  71. Section 7 provided that it was an offence for a man to have unlawful sexual intercourse with a woman who is a defective (emphasis added). The retention of the word ‘unlawful’ suggests that a man cannot commit certain offences by having sexual intercourse with his wife.

  72. Section 45, Sexual Offences Act 1956.

  73. Gunn et al. (2001) at note 65.

  74. X City Council v MB, NB and MAB [2006] at paragraph 77.

  75. Those ‘kindred offences’ comprise: assault by penetration (section 2); sexual assault (section 3); and causing a person to engage in sexual activity without consent (section 4).

  76. Section 74 Sexual Offences Act 2003.

  77. Mental disorder is defined as having the same meaning as section 1 of the Mental Health Act 1983 (section 79(6) Sexual Offences Act 2003).

  78. See, for example, sections 30(2), 31(2), 32(2).

  79. X City Council v MB, NB and MAB [2006] at paragraph 82. The two formulations of capacity are those contained in section 74, and in sections 30-33 of the 2003 Act.

  80. X City Council v MB, NB and MAB [2006] at paragraph 84.

  81. Re MM (an adult) [2007]. Expert evidence stated that MM was unable to adequately describe the purpose of marriage. Although able to provide a list of words which she said were what marriage ‘meant’, she did not understand either the words themselves or the concepts which they represented.

  82. Re MM (an adult) [2007] at paragraphs 28–29.

  83. D. County Council v LS [2010] EWHC 1544 (Fam). LS was a vulnerable 39 year old woman with learning disabilities which made her prone to certain mental illnesses.

  84. R v C [2009] UKHL 42.

  85. In other words, the individual must be capable of choosing to do that particular act with that particular person. It is, however, necessary to distinguish between those matters which go directly to an individual’s capacity to make a choice, and those matters which can only be relevant to a ‘best interests’ decision. An individual may also lack capacity to consent based on an irrational fear arising from their mental disorder (D. County Council v LS [2010] at paragraphs 40–42).

  86. D. County Council v LS [2010] at paragraph 38. It was also held that R v C was consistent with the statutory definition of capacity contained in section 3 of the Mental Capacity Act 2005 (see note 8 above regarding the requirements of section 3). The extent to which this latter point alters the substance of the test laid down in X City Council and Re MM is unclear, as it was not considered necessary to decide whether the courts in those two cases had considered the test in section 3 to be part of any test of capacity for either sexual relations or marriage (paragraph 37).

  87. D. County Council v LS [2010] at paragraph 43.

  88. Durham v Durham (1885) at page 88.

  89. Moore (1974) at pages xv-xvi. Further examples are provided by, for example, Rose (1983); Himmelfarb (1986); and Kane (1995). Similar tales of ignorance can also be found amongst the criminal case law. For example, both R v Flattery (1877) 2 Q.B.D. 410 and R v Case (1850) 4 Cox 220 saw girls agreeing to intercourse in the mistaken belief that they were being provided with medical treatment.

  90. Cannon v Smalley (1885) at page 98. Dr Savage had been summoned to see Mrs Cannon 10 days after her wedding.

  91. The Times, 17 December 1881.

  92. Williams (1998) at page 17.

  93. Williams (1998) makes this point with regards to the late 19th century (page 28).

  94. In X City Council v MB, NB and MAB [2006] the court accepted the submission by counsel for the Official Solicitor that it was not appropriate to describe the sexual element of marriage in terms of either a duty, or a responsibility (paragraph 60).

  95. Durham v Durham (1885) at page 82.

  96. Sheffield City Council v E [2004] at paragraph 144. An overly stringent test would also have potential human rights implications.

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  1. School of Law, University of Nottingham, University Park, Nottingham, NG7 2RD, UK

    Ezra Hasson

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Hasson, E. ‘I Can’t’: Capacity to Marry and the Question of Sex. Liverpool Law Rev 31, 95–110 (2010). https://doi.org/10.1007/s10991-010-9075-8

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