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The myth of the Common Law Marriage

Posted by Danielle Harvey on 4 April 2022

couple snuggled on a sofa The wedding industry is finally getting back on its feet after the devastating impact of the Covid pandemic over the past couple of years. Nicky Hunter, partner at Stowe Family Law, shares her insight on what's to come in the industry and tackles the myth of 'common marriage law'.

During the pandemic, temporary measures were introduced to the wedding scene to allow more flexibility and couples to proceed with their wedding even under lockdown laws. Weddings were permitted to be conducted outdoors at certain licensed venues across England and Wales, which meant couples could still marry safely during the lockdowns.

In an exciting move towards helping couples have the wedding of their dreams, outdoor weddings at licensed venues will be legalised permanently as of 6th April 2022, under The Marriages and Civil Partnerships (Approved Premises) (Amendment) Regulations 2022. This has resulted from the overwhelming support of the temporary measures put in place during the pandemic, from the general public, faith groups, and the wedding industry itself. Over 90% of people have backed the move to legalise outdoor weddings.

Over the past few years, bolstered by the impact of Covid, we've seen a drastic change in the types of weddings couples are choosing to have, moving away from the traditional towards alternative styles that better suit the individual personalities and tastes of the couple. The Law Commission is still investigating marriage laws in the UK and working towards ensuring that couples can have the wedding of their dreams. The final report is due to be published in July this year. Reforms to religious ceremonies will likely be made after the consultation into marriage laws found that every major faith group supported the move to legalise outdoor weddings at licensed venues.

two brides embraced in the street It's a really exciting time to be planning a wedding – with so much out there to investigate and style. However, it's important to recognise that, in some cases, where they don't meet all the formal requirements, these weddings are not legally recognised.

For example, a Humanist wedding ceremony conducted by a Humanist celebrant is not legally binding in England and Wales. This will be stated at the beginning of the service. Although this is being looked into, couples who choose to go down this route need to be aware of their marriage's legal status. In the eyes of the law, you will not be married and will, instead, have the same rights as a couple who live together (cohabiting).

Over 3.4 million couples in the UK currently cohabit. There is often confusion around the term 'cohabitation' and what this means legally, particularly with the influence of the so-called 'common law marriage', a term coined to describe an unmarried couple who live together. In fact, the myth is widespread, with a recent survey by Stowe Family Law revealing that over half of the respondents (51%) believed that couples who live together have the same legal rights as married couples.

However, there is no such thing as a 'common law marriage'. In reality, couples that live together enjoy very little of the legal protection enjoyed by their married counterparts. Therefore, it is very important to be fully aware of your rights if you have a wedding that is not legally recognised, particularly financially.

couple on a sofa eating dinner One way to help protect a couple if they choose to have a non-legally binding wedding ceremony or cohabitate is a cohabitation agreement. Although not legally binding, when properly prepared by a solicitor and both parties seek independent legal advice, it will have the force of a contract between the parties and can hold sway in court if a dispute arises if the couple separates.

However, in practice, most couples do not have such agreements in place. In fact, with Stowe's research revealing only 9% of cohabiting couples have a cohabitation agreement, the remaining 91% would do well to consider the benefits of having one drawn up.

With reforms to religious ceremonies likely soon and the number of cohabiting couples in the UK set to keep rising, the law needs to catch up with the changes in family structures and reflect the choices people are making regarding marriage and relationships. But change will not be quick so couples looking at having a non-legally binding wedding should make sure they are fully aware of what legal and financial protection is available to them. Setting up a cohabitation agreement is a great way of doing this.

Exciting things are happening in the wedding industry, and positive changes are coming – in the meantime, couples need to make sure that they are protecting themselves and their relationship.

Happy planning!

Nicky Hunter, partner at Stowe Family Law

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