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Are you married/in a civil partnership or living together? Do you know your rights?


Are you married/in a civil partnership or living together?

Did you know; There is no longer such a thing as a common law marriage. It was abolished by the 1753 Marriage Act?

Several misconceptions exist in relation to marriage and when people live together:

  1. Some people believe they are married:
  2. Because they have participated in a religious marriage ceremony in England or Wales – this is not true if the necessary procedure has not been followed
  3. Because they have children together
  4. Because they have lived together for a long time

 

but they are NOT IN THE EYES OF THE LAW OF ENGLAND AND WALES

 

  1. Some people deliberately have not married or entered into a civil partnership (which is only available to same sex couples) and live together but think they have the same legal rights as married couples/civil partners, but they don’t.

This article is not designed to cover every aspect of matrimonial law, but here are a few things you should be aware of:

  1. To get married in England or Wales, religious ceremony – you:

WHO

- have to be not still married already

-have to be over 18 (or 16 if you have your parent’s consent)

-cannot be too closely related

-have the ability to understand what you are doing to give valid consent

                 

HOW

-GIVE NOTICE of the marriage to the Superintendent Registrar of the district of where you live (usually at least 28 days before the ceremony), these preliminaries can be done through the Church of England or Wales using the banns process or Archbishop’s licence process.  

-foreign nationals who are subject to immigration control have to comply with extra notice and financial conditions

- People living in the UK who intend to get married abroad still need to give notice in the UK.

WHERE

- you have to get married at a premises that is licenced for marriage ceremonies or is a Church of England/Wales Church AND you are married by a person licenced to marry you (usually a Registrar unless you are in a Church (always check this as even in a church they must be registered). YOUR OWN HOUSE IS NOT USUALLY ALLOWED. (There are some exceptions to this for Quaker marriages).

If you are marrying in a Church that is not a Church of England or Wales Church then you have to follow the conditions that apply to that Church, and in particular must check that the Church is Registered for marriages (sometimes the Superintendant Registrar needs to be present for the marriage to be valid if it is not a Church of England or Wales Church).

Other religions – the parties must also have a Civil Ceremony as well as the religious ceremony for a marriage to be legally valid. Some Buildings of Worship for non-Christians are also registered as wedding venues and people can deal with the civil aspect of the marriage (at a slightly separate moment) during the same ceremony that involves the religious side, provided that a Registered person deals with the civil legal aspects to the marriage. This can be a religious leader, provided they are Authorised under UK civil law to conduct civil marriages, otherwise a Registrar must also be present to conduct the civil part of the marriage.

It is important to check that BOTH the premises and the CELEBRANT are registered. If they are not then a separate Civil Ceremony should be arranged. 

  1. To get married in England or Wales:

Non-Religious ceremony – Can be at any Registered Premises and is conducted by a Registrar.

Worcestershire County Council has a helpful list of registered venues for non-religious settings in Worcestershire. If you are in any doubt as to whether the premises for where you are marrying meet the legal requirements or your Celebrant is registered in civil law to conduct marriage you should speak to the local Superintendent Registrar for your local area.

 

  1. Marriage abroad:

The law of England and Wales does recognise marriages that have been validly conducted abroad. In order for the marriage to be recognised as valid, the parties must usually be living in that country when they got married, and it needs to be recorded and comply with the marriage laws of the country where the marriage takes place.

 

WHY DOES IT MATTER WHETHER YOU ARE MARRIED/CIVIL PARTNER OR LIVE TOGETHER?

What different rights do parties who live in England or Wales who are married in a civil partnership and people who are not married/civil-partners, or don’t have a legally valid marriage, have? (The law in Scotland is different)

Right

Married

Not legally married

On death – the estate and who is entitled to inherit

It is advisable to make a Will – the Will says who inherits. If there is no Will then the spouse inherits all the estate unless there are children when they will get a fixed amount. If the spouse is not adequately provided for in the Will they can make a claim as a dependent.

It is advisable to make a Will – the Will says who inherits. If there is no Will then a cohabitee may get nothing (unless the property is jointly owned). A cohabitee can make a claim as a dependent or if they were made promises that they have relied on to their detriment.

Pensions on death

Most pension funds have spousal benefits on death although they do differ on what they are (the rights vary for a same-sex spouse depending on the type of pension)

Some pension funds do not provide for a cohabitee, usually the cohabitee has to be nominated as the chosen beneficiary but it is still up to the Pension Trustees if they follow this. Most government pensions do provide benefits for unmarried partner’s now but the person has to be nominated (although that may change as it was challenged successfully in relation to the Northern Ireland local govt scheme in 2017)

State Pensions on death

Widow/Widower’s state pension rights. These vary depending on age of parties (and if same sex marriage or civil-partnership), and are not available if claimant reaches State Pension Age (SPA) after 6.4.16

Bereavement support payments available (max 18 months)

No state pension rights are transferrable or inherited, (although cohabitees are treated as a couple for means tested state benefits in life)

Bereavement support payments are not available.

Rented Housing on death (the rules vary depending on how long the tenancy is for and what sort of tenancy it is)

A spouse (if not also a tenant) can usually claim successor’s rights (if there are any)

Cohabitees  (if not also a tenant) will usually be able to claim successor’s rights (if there are any)

Private Pensions on separation

A spouse can make a claim in divorce proceedings for a share of the other party’s pension fund (this if often very valuable)

A cohabitee has no rights to make a claim.

State Pensions on separation

There are complicated rules depending on your age and whether you reach state pension age (SPA) before or after 6.4.16, if before then the rights may be sharable or spouse can make a claim based on NI contributions of their ex-spouse. This is not available for people who have not reached SPA

No rights to claim on partner’s contributions

Owned property – CAPITAL such as  Houses, savings

The Court can adjust the division of assets owned by the couple whether in joint names or sole names on divorce or judicial separation and can transfer assets

A Cohabitee cannot claim for a share of their partner’s assets. If a house or other asset is in one person’s sole name then the other person has no right to it unless it has been agreed (VERY USEFUL AND ADVISABLE EVIDENCE OF THIS IS A COHABITATION AGREEMENT or DECLARATION OF TRUST) and usually they have had to make a financial contribution. This is a very difficult and expensive argument to have. If the property is jointly owned then the property is divided in accordance with the parties shares (a declaration of trust is STRONGLY advised if it is not equally)

If the parties have minor children the Court can transfer ownership or allow a party to stay in the other person’s house during their childhood but it is unusual and depends on the parties’ assets. There usually needs to be enough money to house both parents for this to even be considered.

Possessions and pets

The Court can decide who is to have what (but it is expensive and better agreed)

The person who purchased the pet or possession is the owner.

Income –  monthly maintenance for the partner

The Court can make a spousal maintenance order – for one party to make monthly payments to the other spouse for themselves

No maintenance can be claimed for themselves

Income – child maintenance

The primary carer of the child can claim monthly child maintenance through the Child Maintenance Service if it is not agreed. If the other parent owns a significantly high income then the Court can make child maintenance orders.

The primary carer of the child can claim monthly child maintenance through the Child Maintenance Service if it is not agreed. If the other parent owns a significantly high income then the Court can make child maintenance orders.

Children

Both spouses have parental responsibility of children born in the marriage. The Court can make decisions based on what is in the child’s best interests about where the children live and what time they spend with each parent if the parent’s cannot agree.

A father only has parental responsibility if he is named on the birth certificate or has a separate parental responsibility agreement or court order.

The Court can make decisions based on what is in the child’s best interests about where the children live and what time they spend with each parent if the parent’s cannot agree.

Domestic violence

The Court can make orders (injunctions) to prevent abusive and threatening behaviour, and can exclude a spouse from a property (this is not usually an order for more than 6 months but can be)

The Court can make orders (injunctions) to prevent abusive and threatening behaviour, and can exclude a partner from a property but if the victim has no right to live in the property (as an owner or tenant) it will usually only be until they are able to find somewhere else to live.

Immigration

Rights as married couples

Similar to married couples but must have been living together for at least 2 years.

 

 

 

Added: 13 Feb 2018 09:48


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