Capacity to marry, cohabit and have sexual relations
Capacity to marry, cohabit and have sexual relations

The following Private Client guidance note provides comprehensive and up to date legal information covering:

  • Capacity to marry, cohabit and have sexual relations
  • Capacity: general principles
  • Capacity to marry or enter into a civil partnership
  • Capacity to cohabit
  • Capacity to have sexual relations
  • Capacity to agree to the use of contraception

Questions of capacity to marry, cohabit, have sexual relations and agree to the use of contraception are clearly highly sensitive and personal issues in which individuals’ Article 8 rights to a personal and family life are strongly engaged. This Practice Note starts by providing an overview of the general legal framework for assessing capacity under the Mental Capacity Act 2005 (MCA 2005) and then goes on to examine the specific tests developed by the courts to assess each of these issues, which reflect the delicate balance between protecting vulnerable individuals and promoting personal autonomy.

Due to the desire to enable vulnerable adults with learning difficulties and other cognitive challenges to enjoy the benefits of married life and/or a sexual relationship, the relevant tests for capacity have been set at a deliberately low level and are widely considered to require a lower level of capacity than, for example, the test for testamentary capacity.

Capacity: general principles

The general legal principles to be applied when determining whether a person has capacity are set out in MCA 2005 and in the MCA 2005Code of Practice. These principles are summarised below:

  1. a person must be presumed to have capacity unless the contrary is proved. The burden of proof therefore lies on the party asserting that P does not have capacity. The standard of proof is