AOW A-Z of Getting Married – L is for Legal

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L is for Legal by Yanthe

Marriage is just a piece of paper.  Isn’t it?

I know the readers of AOW will have their own thoughts on whether marriage is much more than that emotionally, but what does it mean legally?

The classic legal definition of marriage widely used is “the voluntary union for life of one man and one woman to the exclusion of all others.”  I’m sure you will not be surprised to know it originates from a case heard in 1886, but marriage equality debate aside (and believe me I can really get on my high horse about that), legally, marriage comes with certain rights and obligations.

- Marriage gives you the right to occupy the matrimonial home.

- Marriage gives you the right to reasonable sexual intercourse (not by force but it is a scarily short time ago that rape was recognised in marriage)

- Marriage gives you the right to mutual financial support

- Marriage gives you the right to use your husband’s surname, even after death or divorce (that’s not to say you have to, no no, your name is yours to keep if you so wish!)

Perhaps the best way of explaining what marriage means legally is to compare it to the legal position between cohabitants. More often than not these days couples live together before marrying or entering in to a Civil Partnership.  For example, if you are unmarried and live with your partner to and they solely own the home in which you live, then you may struggle to make any claim on that property whether you have contributed to it or not.  If you were married, however, the court’s first port of call would be to divide the value of the matrimonial home 50/50 unless it were persuaded there was good reason to deviate from that equality.

In marriage and Civil Partnerships spouses have a duty to provide each other with financial support and they may apply to the court for a financial/property award for themselves on the breakdown of marriage.  Cohabitees do not share those rights(save for under civil property laws if they can establish they have made a contribution to the value)[MS1] .  That said, whether married or not, if you are parents you would have a duty to maintain natural children financially.

One very important point for everyone contemplating marriage, is the effect  it has on how your assets would pass should you die without a Will (intestate).  EVERYBODY SHOULD MAKE A WILL!!  It doesn’t matter  whether you have two pennies in your pocket or millions in some locked vault somewhere near the Swiss Alps, you need a Will.  I could cover a whole post on this alone, but the point here is that if you are married and a spouse dies intestate the other will automatically inherit at least part of that spouses estate (depending on how their assets are held with any third parties).  If you are not married and a partner dies intestate, you have no claim to automatic inheritance and that is the position whether you have been together 20 months or 20 years.  There is legislation for a claim to be made but it is in no way guaranteed.  As I said, the failsafe is to make and keep an up to date Will (a Will must be updated upon marriage).  This can be very important to anyone who is marrying but, for whatever reason, wouldn’t want to leave their estate to their spouse (i.e. you have children from a previous relationship).

The next couple of points really relate to the breakdown of a relationship or marriage.  Nobody enters in to a marriage expecting it to fail, but I wouldn’t haev a job if it didn’t sometimes happen. Two points to remember about how marriage differs to cohabitation should you separate are: -

- Spouses have a statutory right to occupy the matrimonial home and only a court order can prevent them from doing so, but a cohabitant without any legal ownership of the shared property has no statutory right to occupy the family home (the sort of situation this generally relates to is one of domestic abuse but can also be important for separating parties who don’t have the kind of funds to live separately whilst the formalities are dealt with)

- A marriage can only be ended by a court order; cohabitation can be ended at any time by either party

-Marriage has its pros and cons, just like everything else in life.  None of these negative points put me off the thought of marrying my guy one day and I see them in action in the worst possible ways, but anyone entering in to a marriage should fully understand what they are signing when they are sat in front of that register, ready to beam at the camera posing with the pen.  It may not be the most romantic of views and it definitely ain’t as pretty as ‘F is for Flowers’ , but it is sensible to know what you are getting yourself in to.

Finally, on the note of this not being the most romantic view of marriage, I’d best deal with pre-nuptial agreements.  The oh-so-wonderful British press (I’m thinking of some papers more than others here) would have you believe pre-nups are legally binding.  They’re not.  If they are properly executed they can be taken in to account by a court considering divorce proceedings as a ‘circumstance of the case’.  I won’t start quoting statute at you, but a court has a long list of factors it has to consider when looking at how the finances of a marriage or Civil Partnership should be divided, and one of those is ‘all the circumstances of the case’.  Gives them quite a lot of discretion you see.

For a pre-nup to be considered properly executed both parties must have had independent legal advice on its contents and they must know about everything the other spouse has (otherwise known as full disclosure). It must be signed in plenty of time before the marriage and, most importantly, it must be fair.  If a pre-nup is signed that leaves (to be stereotypical for a mo’ – forgive me) the poorer spouse with not very much and that poorer spouse happens to be the Wife who also happens to have had two children during the marriage which weren’t accounted for in the pre-nup, then no court is going to uphold it.  A court will not allow one spouse to walk away not having had their needs met or the needs of the parties’ children met.  Reality is that lawyers preparing a pre-nup will advise of this and it is unlikely to have been signed if both parties wouldn’t be in a satisfactory position should it be enforced.

Everybody has their own opinion on marriage, whether it’s ‘necessary’ and what difference it really makes. Everyone has their own opinion on pre-nups and whether they take away what marriage is really all about.  You already know I’m pro-marriage for myself; maybe I’ll let you guess whether I’m personally pro pre-nup…

*This post in no way constitutes legal advice, if you have any queries whatsoever about your own personal legal position you should contact a lawyer to discuss your particular circumstances.  The law as referred to above concerns the jurisdiction of England and Wales only.*


 [MS1]Explain briefly maybe?

 [MS2]I like!

Categories: A-Z of Getting Married
7 interesting thoughts on this

7 Comments

  1. Becca
    Posted November 7, 2012 at 7:42 am | Permalink

    Does anyone remember that episode of four weddings where they called off the wedding because the (landed gentry type) groom wanted a pre-nup from his (poor) bride? He brought it up the week before the wedding and she refused to sign it.

    We discussed pre-nups then. And as we’ve been together for 10 years and one of us has more savings but the other more earning potential, we figured its pretty even as to what we’d contribute. However, I am completely pro pre-nup in the right circumstances. The right circumstances being that one party is ridiculously minted and the other as poor as a church mouse.

    Just because you have a pre-nup it doesn’t mean you forsee getting divorced. It does mean that you are aware that statistically there is a chance you MIGHT get divorced. It means that you have legal advisors that have done their job in suggesting its a method by which you can protect your assets. I would have signed it if I was that 4 weddings bride. I’m getting married because I think it’ll be forever so I won’t NEED the pre-nup. Therefore its a piece of paper.

    As an aside, I have friends that have bought co-habiting (no one can buy a house AND get married in London…its impossible) and they have signed a declaration of trust. Its a real option to deal with your property assets if you are co-habiting but want legal protection. Qualified by the same not legal advice bla bla bla as above.

    • Yanthé
      Posted November 7, 2012 at 9:35 am | Permalink

      Hi Becca, you’re right, trust deeds are very good for those buying who are not contributing equally. I’m very with you on the not being able to get married AND buy even a teeny tiny flat in London!

  2. Posted November 7, 2012 at 9:23 am | Permalink

    The legal stuff just makes me think of Downton Abbey, with Anna and Bates, where she wants to have rights to know what’s going on with his trial, visitation etc…

    I think it’s a very important part of marriage that’s glossed over a little, connected to one of the previous posts this week about the need for people to get married ‘in this day and age’. For right or wrong you jave more rights if you’re married, I guess it’s a bit of a safety net. And something I really need to look into more.

    Ah 4 weddings, I remember that one! The implication was definitely that he thought she was a gold-digger, and with the proximity to their wedding I can completely understand why she was so upset and didn’t go through with it. Although I have to say, given the point of 4 weddings is them all b*tching about each-other’s weddings, it maybe doesn’t portray marriage in the best light!

    • Becca
      Posted November 7, 2012 at 1:45 pm | Permalink

      Ummm….I thought she was a gold digger too!

  3. Cheri
    Posted November 7, 2012 at 9:33 am | Permalink

    Each to their own when it comes to pre-nups I think. I was advised by my lawyer friend to have something signed by my now husband and I that would acknowledge the value already in my house if we were to separate. We didnt. She knew I wouldnt but felt she should advise me that way. In my view I didnt marry to one day get det divorced, and I will fight tooth and nail for my marriage through the hard times so it doesnt come to that. Some may think its a naive view, but its my naive view!

  4. Posted November 7, 2012 at 1:43 pm | Permalink

    Thanks Yanthe, shockingly enough, despite being already married, some of this I didn’t know! Can you please write a post on Wills for AOW??? :)

  5. Anita
    Posted November 8, 2012 at 5:51 pm | Permalink

    Utterly brilliant post Yanthe. Until I went to see a solicitor to start the divorce process I had no idea that if I were to get hit by a bus he would inherit my house (and it was MY house, not OUR house, sorry to all those marriage-is-all-about-equality types -it is until it breaks down in my experience!) So glad that someone is pointing this out

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Hello! We're Clare, Aisling and Anna and welcome to a corner of the world where smart, flawed, real women talk about the bigger picture; about their experiences, stories and opinions on all aspects of being a woman today, from marriage to feminism to pretty, too.

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