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Imogen Mellor examines why the Court of Protection has resisted extending person-specific capacity assessments to marriage
- Analyses the Court of Protection’s decision in Stockport Metropolitan Borough Council v EKK, confirming that the test for capacity to marry remains status-specific rather than person-specific.
- Explores the legal and practical difficulties that a person-specific test would create, including the risk of judicial ‘spouse vetting’ and overly paternalistic decision-making.
How well can we ever really know another person? And how well do we need to know someone before we marry them? Podcasts and documentaries are rife with tales of people who were in relationships with someone who later turned out to be someone completely different to how they first presented; tales of hidden pasts and changed identities. And then there are the circumstances where people marry knowing very little, if anything, about the other person when they say their marriage vows and commit to one another.
Would it be right to determine that A and B lack capacity
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