What do you think of when you picture a marriage? A ceremony, a party; living together and maybe having children or buying a house?
Would it shock you if, 20 years down the line, it turned out your marriage was, legally, nothing of the sort?
This nasty surprise is waiting for large numbers of people and it tends to come upon them at the very moment they least welcome it: the point of separation, when assets come to be shared out.
‘Common law’ marriage is one big trap. It’s not a real thing, even if there are children from it; and it makes no difference how long you’ve been together. You need a legal marriage – which is to say, one recognised by the civil state – if you want to use your legal rights under the Matrimonial Causes Act 1973 to claim your proper share of assets from the relationship.
Before 1973, women had fewer financial rights within marriage than men. We often advise women it will be more beneficial for them to marry than to co-habit, whatever reservations they may have about the patriarchal construct marriage can appear to be. In more recent times, the choice has become broader: both heterosexual and same-sex couple can now have a civil partnership, which perhaps feels more appropriate to the 21st century. Your rights on dissolution of a civil partnership are the same as your rights on divorce, by the way.
When it comes to religious marriages, British society is well behind the curve. A case decided by the Court of Appeal on Valentine’s Day illustrates this well. A couple had a marriage ceremony, called a nikah, under Islamic law. For the next 18 years they styled themselves as husband and wife. They didn’t, though, follow up the nikah with a civil ceremony. According to the case reports, the wife wanted a civil ceremony but the husband refused. In 2016, when the wife petitioned for divorce, the legal position was that she wasn’t married. This means that she can’t go to the family courts to claim a share of the ‘matrimonial’ assets, including her partner’s pension; anything held in her partner’s sole name; or maintenance. Her only option may be to pursue an Islamic divorce through a sharia council.
For antiquated reasons, which need an overhaul, only Quaker, Jewish and Anglican religious marriages are recognised by the state. Other religious marriages are only lawful marriages if the couple also undergoes a civil ceremony. A survey in 2017 found that almost two-thirds of Muslim women in the UK who’d had a religious ceremony did not also have a separate civil ceremony. This leaves them in a very vulnerable position. It would be best if the law was updated but until that happens, we direct our clients to the website of the Register Our Marriage campaigning organisation. This tells you all you need to know about this comparatively straightforward process.
Ask us for advice if you want to be sure you’ve properly safeguarded your legal rights within your relationship.