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MARRYING FOR MONEY OR MATERIAL EXPLOITATION?

Everyone likely knows of, or has heard of, someone that they consider a 'gold digger'. Generally society disapproves of marrying for money and so far there is no law enacted that makes it illegal; however, Courts are finding ways to protect capable but vulnerable adults.

It has been suggested in the Courts that in some circumstances, namely where a wealthy older adult is being targeted by a younger, marriage-minded individual, that a form of financial or material exploitation is taking place. The Courts are now looking at equitable principles such as undue influence, duress, unconscionability, and equitable fraud to try and protect older adults from being exploited.

The capacity required to consent to a marriage is relatively low. Further, in 1998 in a case in Ontario, exploitation was argued and the Court found that undue influence was inapplicable to marriage. However, the case did mention that a marriage could be set aside on the grounds of duress so the doors to try an argument of exploitation were left open.

In 2004, again in Ontario, an exploitation case was argued. The Court looked at the issues of undue influence, duress, and coercion and found that these principles did exist; however, they did not have to address these issues directly because the deceased groom, Mr. Sung, lacked the capacity to marry in the first place.

In the case of Mr. Sung, he was 70 years old when he hired a housekeeper, Ms. Fung, to look after his home as his wife had recently passed away. Mr. Sung's mental state was described at the trial as being lonely and depressed.

Mr. Sung hired Ms. Fung in October of 2000. Mr. Sung married Ms. Fung in September 2001. Ms. Fung claimed that she was not just a housekeeper but Mr. Sung's lover. Medical evidence advised that Mr. Sung was impotent, incontinent, and was diagnosed with lung cancer in May 2001, a few months before the marriage. Mr. Sung died in October 2001, six weeks after the date of the marriage.

Mr. Sung's children went to Court to get a declaration that the marriage was void. They argued that the marriage should be declared void as Mr. Sung did not have the capacity to consent to the marriage. As an alternative, the children argued that the marriage was void by reason of duress, undue influence, and coercion. Ms. Fung was asking the Court to award her between $1,000.00 and $2,000.00 per month in support for the rest of her life (she was 48 years old when Mr. Sung died), possession of his apartment, and a preferential share of Mr. Sung's estate as she was his widow.

Mr. Sung's children gave evidence that the relationship between their father and Ms. Sung was one of nurse/housekeeper and was not romantic in nature. Mr. Sung's son gave evidence that he was not advised of the marriage until after it had taken place. When Mr. Sung's son asked his father why he would get married after he was diagnosed with a terminal illness Mr. Sung told his son that he was afraid that Ms. Fung would leave him. Ms. Fung denied she was a professional caregiver and had always been Mr. Sung's girlfriend.

In the end, the Court found that Ms. Fung was nothing more than a nurse/housekeeper who wanted Mr. Sung's money, knowing that he was dying, and that she used duress, undue influence, and coercion to have the marriage take place. The Court also found that Mr. Sung lacked the capacity to consent to marriage. The lesson in this story - gold diggers do not always find gold.

By Stacey M. Johnson
February 22, 2006