Marriage and Incapacity

July 12, 2007 Hull & Hull LLP Archived BLOG POSTS - Hull on Estates Tags: , , , , , , 0 Comments

Persons found to be incapable to manage their property may, nonetheless, be capable to marry (for an in depth discussion of this issue see the 1998 decision of Justice Cullity in Banton v. Banton).

This reality gives rise to all kinds of potential legal dilemmas and truly represents the flashpoint between capacity litigation and family law litigation. If a person incapable of managing their property enters into a marriage, there is a near-certain likelihood that friction will develop between the new spouse and the incapable person’s substitute decision maker.

In large part, the making of financial decisions together is one of the defining characteristics of a marriage. In the situation of a marriage between a capable person and an incapable person with a guardian of property, the substitute decision maker inevitably has a role to play. And what if the new spouse brings a child into the marriage?

Clearly, the family law regime imposes support obligations upon spouses in the event of separation. But how is this obligation reconciled with the obligation of the substitute decision maker to act in the financial best interests of the incapable person?

From the perspective of the legal practitioner, expertise in both family and capacity law is required to seek a creative resolution of any disputes that can develop

Have a great day,



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