Predatory Marriage, an attack on the vulnerable elder population

An emerging issue in Canada and many parts of the world is the commonly overlooked issue of predatory marriage. This growing phenomenon is wrecking havoc on a specific group which is made up of some of the world’s most vulnerable individuals, the elderly.

A predatory marriage involves more than simply a large age gap between the parties, it involves a predatory spouse and a victim spouse. A predatory marriage may be better defined as a situation where one of the parties entered into a marriage when they were vulnerable (the victim spouse) due to diminished capacity, whether due to a diagnosis of dementia or their advanced age. The victim spouse tends to rely upon the predatory spouse for day-to-day care, which creates the opportunity for the predatory spouse to gain access and control of the victim spouse’s financial assets as well as establish a claim towards the victim spouse’s estate. This access is gained through exerting undue influence on the victim spouse, changing the victim spouse’s will, obtaining Power of Attorney over the victim’s spouse’s finances or establishing a life estate interest in the home of the victim spouse through marriage.

Legal Challenges

The courts have found that the level of mental capacity that is required to enter into a marriage contract is quite low.

The Alberta Court of Appeal found in Chertkow v. Feinstein 1929, that states:

“The capacity to enter into a valid contract of marriage is a capacity to understand the nature of the contract, and the duties and responsibilities it creates.”

The Alberta Court of King’s Bench found in Barrett Estate v. Dexter, 2000 ABQB 5330 that a marriage was void on the basis that the vulnerable elder did not have the mental capacity to enter into a marriage contract.

The importance of voiding a marriage in these circumstances relate to the remedies available to a surviving spouse through the Divorce Act, the Family Property Act and the Dower Act.

Things to Look For

The most common occurrences in predatory marriage cases involve a live-in caregiver for elderly individuals. The children of the vulnerable elder tend to be caught by surprise when they are confronted with the fact that the caregiver has or intends to marry their elderly parent.

By the time this occurs, the steps available to contest the marriage are limited to Court applications that require significant legal work.

There are more options to protect the vulnerable elder at the beginning of the living/care arrangement. We recommend that individuals seek legal advice in these circumstances to protect their loved ones and their estate against potential predators.