Many people believe that marriage is outdated and unnecessary and that living together, co-habiting in legal jargon, is right for them and their circumstances. However, there are legal reasons why marriage is the better option. People may believe that drawing up a legal agreement, a co-habitation contract, with their partner will protect their legal rights, but that is not necessarily so. Many couples who are living together believe that Common Law marriage still exists and gives them the same legal rights as legally married couples. Unfortunately, that belief compounds the heartbreak and difficulty when couples break up, because it has not existed under English and Welsh law, which is the basis for many English-speaking jurisdictions, since 1753.
More than four million couples in England and Wales live together. Many believe that, after a few years, they become a Common law married couple and have the same legal rights as a married couple. Common law marriage is extinct in law and has been so since
Hardwicke’s Marriage Act 1753 banned marriages not sanctioned by law. Many people do not understand what constitutes a legal marriage. Marriage, in law is a contract between the spouses, which is enforceable in a court. A religious ceremony does not necessarily mean that you are legally married. In England and Wales, only a registrar can conduct and record a legal marriage, by a certified entry in the United Kingdom’s register of Marriages and a marriage certificate issued in the country in which the marriage occurred. All Church of England priests are registrars, ministers of other religions have to get a licence, from the registrar general, authorizing them to register marriages legally and are not necessarily be registrars. Other jurisdictions have their own rules as to the constituents of a legally contracted marriage.
Marriage gives spouses legal rights. On conducting a legal marriage, spouses become each other’s legal next of kin. Previous wills become void on marriage. Marriage changes your legal identity because you assume new legal rights and duties towards your spouse. When you live together, you assume no legal rights and duties. Neither do you become one another’s next of kin. Although you can go to a solicitor and draw up a legal cohabitation contract or agreement detailing your rights and duties regarding one another, there is no guarantee that a court would enforce that agreement, should you separate in the future. English law may take such a contract as guidance, but it does not have to do so, and may not consider it at all.
Married couples have defined legal rights. When a married couple owns and lives in a home, whether or not both names are on the mortgage or house deeds, each has rights in the property, under English law. When one spouse dies, the other has a right to remain in the property. On divorce, the court will award a share in the marital home to each spouse. Goods and chattels purchased during the marriage belong to both spouse parties and the court on divorce, will divide joint possessions equally.
Many live in partners think that having a child together gives them rights. The child has rights, but its existence does not give its parents any legal rights. Married parents do have legal rights. When married parents divorce, if one stays home to look after young children, and has custody of those children, the judge will make a maintenance order covering the children and order the other parent to pay maintenance for the ex-spouse. When a live in partnership breaks up, the absent parent may pay child maintenance but is very unlikely to pay maintenance to the former partner. A judge in a divorce case will also enforce legal arrangements for the partner without custody to see any children of the marriage, except in particular circumstances.
If one partner is seriously ill, and unable to make medical decisions, their next of kin must legally make those decisions. If you are married, your spouse, as your next of kin, makes those decisions. If you live with a partner, he or she is not your next-of-kin. Some member of your own family is next-of-kin, and, although your partner may know what you would want in such circumstances, your next-of-kin can go completely against your wishes and make decisions regarding your medical care. Your next-of-kin can also legally forbid your partner to visit you.
On a sober note, once a person dies they no longer own their own body, his or her next of kin does. It is s/he, who arranges your funeral. Your partner may know your wishes, regarding your funeral, but your next of kin can completely ignore them and even bar your partner from the funeral.
If a husband or wife dies intestate, that is without making a valid will, and the couple own their house jointly no one can force the spouse left behind to leave the house. If one partner of a live in relationship dies intestate and they own their house jointly, the portion of the property belonging to the deceased partner, subject to intestacy laws, will pass to their heirs. The heir will not be the surviving partner. It may be the partner’s child or children, parents, or siblings. In France, for example, A & B were a live in couple. B had children from a previous marriage that had ended in divorce. If B had died, although A & B jointly owned their home, B’s children could force A out of her home, and claim half the contents of A & B’s home unless A had receipts to prove that she personally owned particular articles. A and B’s legal advisor advised them to marry, since, in France a spouse is guaranteed his or her home for life, B’s children could only claim two thirds of his estate on A’s death and if A died before B, A’s parents could only claim two thirds of her estate on B’s death. In addition, married couples pay much less inheritance tax and that only on the surviving partner’s death. In English law, and in most English speaking- jurisdictions, this can be obviated by both live in partners making a valid will, however, there is nothing in English law, certainly, to prevent a partner’s family members seeking to overturn the will. This, even if it is unsuccessful will engage the surviving partner in costly and traumatic legal proceedings.
There are other legal safeguards for married couples and those in civil partnerships. These do not exist for those in relationships not sanctioned by law. These legal safeguards ensure married people a better deal than those who live in an informal marriage-like relationship. Live in partners can lose home, children, security, the chance to implement their partners wishes in illness or death and even the chance to say goodbye, to someone they have lived with and looked after for decades. Marriage gives proper legal safeguards for married couples and although you can seek to give the same legal safeguards to a live in relationship, courts do not have to recognize them. Marriage gives people a legal status that living together never can.