Making sure your marriage is legal

Caitlin Philpott, Trainee in the Russell-Cooke Solicitors, trust, will and estate disputes team.
Caitlin Philpott
3 min Read

For some people their wedding day is a life-changing event: a pivotal moment which transforms their relationship. Others may just want the chance to celebrate their relationship and consider marriage or entering a civil partnership to affirm, rather than change, its fundamental nature. And for some, it is simply paperwork.

Whatever your view, getting married or entering a civil partnership is an incredibly personal business. Surely you must therefore be able to plan the day in exactly the way you want in order to execute your vision, be it simple or grand? Not quite.

Your dream day may be a destination wedding, with all your friends and extended family barefoot on a sandy beach in an exotic location. An overseas marriage will usually be recognised as valid in England and Wales, but it first needs to be valid according to local laws. Also, civil partnerships do not yet exist in every jurisdiction. If the country in question doesn’t permit outdoor ceremonies, your beach wedding may need to be supplemented by a civil ceremony back in this jurisdiction.

Alternatively you may prefer a more low-key affair with only your immediate family and closest friends. But if you’re picturing it in the garden of your home with a barbeque afterwards you may be disappointed. Marriage ceremonies generally must take place in a registered building and although during the pandemic the rules were relaxed to allow civil ceremonies to take place in the grounds of such premises, this is unlikely to cover the garden of a private house.

Having your best friend conduct the service may be just the personal touch you’re looking for, but beware! Unlike in California where becoming an officiant can be as simple as completing an online application, in England and Wales a marriage must be performed by a registrar or an authorised religious leader.

The myth of common law marriage is just that and yet it persists. You may have been with your partner for decades and simply haven’t got round to organising the ceremony. You may consider yourselves effectively married and even refer to each other informally as husband or wife. But no amount of time will convert a relationship into a valid marriage and bestow on it the associated rights and benefits. Sadly, putting on a ring is not enough.

Why does all of this matter? From a private client perspective whether or not someone is validly married has enormous consequences for those two well-known certainties: death and taxes. Marriage or entering a civil partnership revokes an existing will, but if the marriage is not legally valid the will remains effective.

Furthermore, an unmarried partner or absence of a civil partnership means such partners cannot inherit under the intestacy rules which govern what happens to someone’s assets if they die without a will.

Even if your partner inherits under your will, the spouse exemption for inheritance tax will not apply if you were not legally married or in a civil partnership. With the inheritance tax rate at 40%, the bill will come as a nasty shock. An invalid marriage can therefore have dramatic and unintended, not to mention costly, results.

The laws relating to marriage are old and extremely complex.

The Law Commission published a report last year which recommended a series of reforms to simplify the current regime and to give couples more freedom. Change may be on the horizon, but until then, don’t try to get married in your back garden!

If you would like to discuss any of the topics mentioned above, please contact a member of the private client team, alternatively, please complete our online enquiry form.

Briefings Individuals & families getting married entering a civil partnership overseas marriage marriage ceremonies at home common law marriage wills estate planning inheritance rights