Alford & Lyden

In the matter of *Alford & Lyden*, the applicants, Ms A Alford as attorney for Ms B Alford and Mr A Lyden as personal representative for the estate of Mr B Lyden (deceased), sought a declaration that the marriage solemnised between the deceased, Mr C Lyden, and Ms Lyden was void. The applicants contended that the deceased lacked the capacity to understand the nature and effect of the marriage ceremony and therefore did not give his real consent. The proceedings were heard by Baumann J in the Family Court of Australia.

The central legal issue before the Court was whether the marriage was void pursuant to s 23B(1)(d)(iii) of the *Marriage Act 1961* (Cth), which requires that both parties have the capacity to understand the nature and effect of the marriage ceremony and to give their real consent. The Court was required to determine if the medical evidence established that the deceased, Mr C Lyden, suffered from a condition that rendered him incapable of understanding the nature and effect of the marriage ceremony at the time it was solemnised.

Baumann J applied the principles that the applicants bore the evidentiary onus of proving the deceased's lack of capacity. The Court considered the expert medical evidence of Dr L, a Consultant Neurologist, who had examined the deceased prior to the marriage. Dr L's evidence, supported by his reports and affidavit, indicated that the deceased suffered from a progressive dementia, specifically Benson's Disease (a variant of Alzheimer's), and that a score of 12/30 on an MMSE test suggested a substantial organic deficit in functioning. Dr L opined that marrying was a complex decision with long-term consequences, which the deceased did not have the full capacity to make. The Court found that while the deceased's siblings and Ms Lyden believed he was capable of making decisions and participating in the marriage, this lay evidence could not displace the expert medical opinion. The Court was satisfied that the deceased did not have the capacity to give his real consent and did not understand the nature and effect of the marriage ceremony.

The Court declared, pursuant to s 113 of the *Family Law Act 1975* (Cth), that the marriage solemnised between Mr C Lyden and Ms Lyden on ... April 2007 was void pursuant to s 23B(1)(d)(iii) of the *Marriage Act 1961* (Cth). The proceedings were subsequently adjourned for a Case Management Hearing.