Confused about ‘tying the knot’?

Even before the introduction of civil partnerships, there was confusion about the status of some partnerships – the widespread use of the term ‘common law marriage’ being a primary example of this. These days there are a number of ways you can obtain legal rights as a couple in England and Wales. In this blog, we look at the different forms of giving your relationship a ‘legal’ status,  – and the problems that can arise if you’re in a relationship that has no legal status.

Legally recognised partnerships

Legally recognised partnerships include marriage – both religious and civil – for heterosexual and same sex couples, and civil partnerships for same sex couples. You can marry or enter into a civil partnership provided you are 16, free to marry/enter into a civil partnership (i.e. single, divorced or widowed) and you are not closely related to the person you intend to marry or enter into a civil partnership with.

In legal terms, there are many protections afforded to couples who take the step to have their partnership legally recognised, either through marriage or registration as a civil partnership.

Marriage

Marriage can be a religious marriage or a civil marriage. In terms of the legal rights the status of marriage confers, there is no difference between a marriage performed by a religious official in a registered religious building, or by a registrar, although the ceremonies have different requirements: a religious ceremony will be conducted according to the religion concerned, whilst a civil ceremony can have no religious content.

Although same sex marriage is permitted in England and Wales, in practical terms, the rules of many religions mean that a religious marriage ceremony may not be available. The Anglican Church in England and Wales does not currently permit same sex couples to marry but same sex couples can marry in other religious buildings if the religion the building belongs to permits same sex marriage and the building has been registered for same sex marriages.

The Scottish Episcopal church has recently voted to allow same sex marriages and St Mary’s Cathedral in Glasgow will host the first same sex marriage, hosting a couple from England who cannot marry in their local church.

Civil Partnership

Unlike marriage which is open to both heterosexual and same sex couples, heterosexual couples are unable to enter into a civil partnership. The civil partnership was introduced in 2005 as a ‘stepping stone’ towards same sex marriage, but has remained in place despite the introduction of same sex marriage in 2014. This was recently the subject of litigation as a heterosexual couple challenged the fact that they could not enter into a civil partnership, arguing that it was a breach of their human rights.

There are some small differences between the requirements of a marriage ceremony and the registration of a civil partnership – a civil partnership can be registered in private whilst a marriage must be public. The names of both parents will be on a civil partnership registration (not just the fathers of the couple as in marriage).

The differences between marriage and civil partnership

In many respects, once you are married or have registered your civil partnership, you have the same legal rights in terms of tax, inheritance, pensions and next of kin arrangements.

As far as dissolving a civil partnership is concerned, the same provisions apply as for obtaining a divorce. The relationship must have ‘irretrievably broken down’ as demonstrated by unreasonable behaviour, 2 years’ separation where both parties consent to the dissolution, 5 years’ separation without consent, or desertion more than 2 years ago. The key difference to note is that unlike marriage, adultery is not evidence of the irretrievable breakdown of a civil partnership.

Non-legally recognised partnerships

Essentially, unless you are married or have registered a civil partnership, your partnership has no legal status. You may have lived together for years, or referred to your relationship as a ‘common law marriage’. The reality is that, regrettably, this is an often used and misunderstood term which confers no legal status at all on the relationship.

Unless you have made arrangements such as drawn up a valid will to cover inheritance matters, completed relevant pension scheme beneficiary nomination forms and the like, your partner will have no rights in respect of your property (or assets) should you die. Although there has recently been a landmark case in Northern Ireland which made the headlines in which the courts ordered that a long-term cohabitee should be entitled to receive her deceased partner’s pension in the same way as if they had been married, legislation has not yet been introduced to confer rights – in life or death – on those who do not marry or enter into civil partnership.  The national organisation of family lawyers, Resolution and the Family Law Bar Association are actively lobbying the Government to bring about much needed changes to this area of law.

While a relationship without legal status means no need for divorce or dissolution should you split up, it also means no protection should your spouse refuse to recognise your contribution to the relationship. The breakdown of a relationship where there is no marriage or civil partnership can be especially traumatic if one partner has handed over money or other property in good faith (or under duress) to the other partner, who then refuses to acknowledge this.

Cohabitation contract

While the impact of death on a cohabiting couple can be limited with a properly drawn up will and other arrangements, there are other issues that should be addressed by a couple who do not wish to marry or register a civil partnership. Although there is a traditional view that they should not be enforced because they undermine marriage, the reality is that a cohabitation contract (or living together agreement) can save a lot of pain and heartache by setting out the arrangements that will apply for example as regards property ownership, payments of liabilities or division of joint and individual assets etc. should the relationship break down.

Although the recent litigation around civil partnerships has highlighted a continuing inequality – this time with same sex couples having greater choice than heterosexual couples – and you may wish to remain unmarried on principle, we would always encourage couples to ensure that they make suitable arrangements to protect themselves, whether through marriage, civil partnership or by drawing up a cohabitation contract.

If  you’d like legal advice on the status of your relationship, or would like to draw up a cohabitation agreement, get in touch. We’re a dedicated family law team, here to help.

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