Closer Magazine recently published online an article entitled “Is there any point in getting married? Closer’s writers go head-to-head in the debate”. Two of their reporters each set out their own views: one in favour of marriage and one against.
Alarming for a family lawyer the no campaign states “unmarried couples move into together before marriage, often have children before marriage and are even starting to have similar rights to married couples as recognised by the notion of common law marriage / domestic partnerships”. It is the last part of that sentence that causes much concern.
Whether the author is referring to legal rights in other jurisdictions is unclear, but certainly in England and Wales there is a fundamental difference between the legal status of a couple who are married and that of those who are not.
There are two key differences between being married and unmarried:
- The nature of your relationship and how it is brought to an end.
- Your financial entitlements upon separation.
A marriage is a formally binding contract and if it is to come to a formal end, needs to be dissolved by way of a divorce or other such formal procedure (for example, a declaration of nullity). If an unmarried couple who live together wish to separate, then there are no formal steps that they need to take to end their relationship. As well as the formalities of the divorce process, there is a cost associated with this, there is currently a court fee payable of £550 and if a solicitor is to help you through the divorce process then this can add a further divorce costs.
The financial entitlements on separation also differ. For a married couple, their financial assets will be divided based on concepts such as reasonableness, fairness and needs. For an unmarried couple, assets are divided by the strict letter of the law: if you are not the legal owner of, for example, the family home then you may struggle to secure any financial payment from it.
There are two other key distinctions where it is simply not possible for unmarried couples to be treated in the same way as married couples:
- Pensions: upon marriage, it is possible for the court to approve and agreement or make an order whereby one person’s pension is shared with the other. This is not possible for an unmarried couple who are separating.
- Maintenance: for a married couple, the court has the power to approve and agreement or make an order for one of the couple to financially support the other by way of monthly maintenance. Depending on the circumstances, this obligation can last for “joint lives”. There is no such power to protect someone leaving an unmarried couple.
The one area of law where married and unmarried couples are broadly treated the same is in respect of their children and children law. Where the parents of a child are married or get married, both parents will automatically what is known as parental responsibility. This is all the rights and responsibilities that come with raising a child. An unmarried couple can put themselves in the same position by ensuring that both parents are named on the child’s birth certificate. Questions such as where the child shall live and what time they shall spend with each parent will always be determined by what is in the child’s best interests and whether or not their parents were legally married is not a technical factor which is taken into account.
Those couples who are trying to decide whether to marry or not should be fully aware of the differences that will arise in their legal status. If you wish to discuss these issues in more detail, then please do contact one of the team at Maguire Family Law. Equally, if one of the concerns is the financial consequences that arise from a marriage, then one option that you may wish to consider is a pre-nuptial or post-nuptial agreement so that you can govern from the start what would happen in the event that your relationship ends.
Of course, for many people this all a hypothetical situation and if they are in a long-term successful relationship then these legal differences regarding separation will not apply. However, Maguire Family Law we believe that it is important to ensure that peoples decisions to marry or not are fully informed.