Predatory marriage is a disturbing phenomenon that was under scrutiny in Ontario. This practice involves the manipulation or coercion of vulnerable individuals, often elderly, into marrying someone for financial gain or exploitation. In response to the growing concerns surrounding predatory marriages, Ontario has implemented new laws and protections to address this issue and safeguard vulnerable individuals. In this blog post, we will delve into the concept of predatory marriage, its implications, and how the law in Ontario has evolved to combat this problem.
Predatory Marriage: A Disturbing Reality
Predatory marriage is a form of elder abuse that occurs when an older individual, typically someone who is mentally or physically vulnerable, is deceived or coerced into marrying another person with ulterior motives. These motives often center around financial gain, gaining access to the victim’s assets or property, or securing inheritance rights. In many cases, the perpetrators of predatory marriages may exploit the victim’s diminished mental capacity or emotional vulnerability.
Understanding the Capacity to Marry
It’s important to note that the capacity required to make a will is generally considered to be higher than the capacity to enter into a marriage contract. In Ontario, as in many other jurisdictions, the legal requirements for marriage capacity are relatively low compared to those for making a will. To enter into a valid marriage in Ontario, an individual typically needs to meet the following criteria:
Age: The person must be at least 16 years old, with parental consent if under 18. However, certain exceptions and variations exist for different types of marriages.
Mental Capacity: The individual must have a basic understanding of the nature and consequences of marriage. This understanding does not need to be as comprehensive as that required for making a will.
Consent: Both parties must freely and voluntarily consent to the marriage without duress or undue influence.
No Prohibited Relationships: The parties must not be closely related by blood or adoption.
Marriage Nullifying a Will
One significant concern regarding predatory marriages is the potential impact on an individual’s will. Historically, in Ontario, as in many other jurisdictions, getting married would nullify an existing will. When someone entered into a marriage, any previously executed will was automatically revoked unless it was made in contemplation of that specific marriage. This meant that if a vulnerable person was coerced into a predatory marriage, their existing will was invalidated, and that new exploiting spouse, would inherit much of the estate upon death.
New Laws and Protections in Ontario
Recognizing the vulnerability of individuals involved in predatory marriages, Ontario has introduced new laws and protections to address this issue.
Bill 245, also known as the Accelerating Access to Justice Act, 2021, received royal assent in April 2021.
One of the notable changes brought about by Bill 245 is the amendment to Section 16 of the SLRA. This section deals with the revocation of a will upon marriage. The amendment, which came into effect on January 1, 2022, means that marriages occurring on or after that date will no longer automatically revoke existing wills.
Couples who have been living together and decide to get married or those who have already made satisfactory estate planning arrangements won’t have to revise their wills immediately upon marriage. They are no longer required to explicitly state in their wills that they are done “in contemplation of marriage.”
It’s important to note that the amended Section 16 is not retroactive. This means that if someone got married before January 1, 2022, their existing will is still considered revoked unless they create a new will after that date and explicitly indicate it’s done “in contemplation of marriage.”
While this amendment can have some implications for estate planning and potentially protect the intentions of the testator (the person creating the will), it may not directly address all the complexities and issues associated with predatory marriages. The prevention of predatory marriages often involves a combination of legal measures, including capacity assessments, safeguards, and legal tools like powers of attorney and guardianship arrangements.
For example, someone without a will who falls victim to a predatory marriage may still end up seeing the majority of their estate going to the new spouse under the SLRA unless that marriage can be challenged.
If you have concerns about predatory marriages or want to protect yourself or a loved one from such situations, it’s crucial to consult with legal professionals who specialize in estate planning and elder law. They can provide guidance on the best strategies and legal protections to put in place to minimize the risk of predatory marriages and safeguard assets and estate plans.