LEGAL CLINIC | What If I Don’t Want To Get Married? What Are Your Rights
The introduction of gay marriage into UK law (except in Northern Ireland) could be described as the most significant step in gay and lesbian rights since the decriminalisation of homosexuality in 1969.
Whether we like it or not, marriage is the most central institution of social society and allowing gay couples to marry is to allow us to play a full and normalised role in adult society. But now that the matrimonial club is open to everyone, gay couples have to ask themselves: do we actually want to get married?
REASONS FOR MARRIAGE
There are many reasons couples choose to marry: the big day; a celebration of love in front of friends and family; and to gain legal recognition of their relationship. But some feel that marriage is too heteronormative, they are not ready for that commitment, or that it just isn’t for them. With proper legal advice, it isn’t necessary to get married for a couple to have the same legal rights as a married couple during the relationship and for them to make decisions about what should happen if it all goes wrong.
Relationships generally come to an end for two reasons: separation or death. In this article, we look at how you can protect yourself in the event of separation.
Generally speaking, if you’re married or in a civil partnership and get a divorce or dissolution, the courts have power to divvy up the assets, order a sale of the former family home, or allow one partner to occupy the home or buy out the other’s half.
However, even unmarried couples can have similar rights too in relation to property ownership, regardless of whether the couple bought the property together or if contributions to a property are made some time later. Couples that live together are known as cohabiting couples. Cohabitation is on the up: in its latest Integrated Household Survey, the Office for National Statistics said that 152,000 gay or lesbian couples were cohabiting: almost ten times the number in 1996. But we aren’t alone: the number of straight couples cohabiting almost doubled in the same time.
Home owners who allow their partners to move in; people who move into their partner’s home and start contributing to the house; and couples who buy together can protect their positions by taking some simple legal advice and drawing up an agreement which determines who is responsible for what outgoings, and the rights of each partner to the home (and any equity in it) in the event of break-up. This document is known as a trust deed and acts as a contract between the parties which can be enforced by the Court. It may seem a bit dramatic considering the end of a relationship whilst it’s in full swing, but it’s better than prolonging the ache of a break-up with complex and expensive legal disputes over who owns what. In that scenario, only the lawyers win.
COMMON LAW MARRIAGE?
Many cohabiting couples overlook the need to draw up an agreement because they believe that the Court will protect them if they are in a monogamous relationship for several years (often called “common law marriage”). However, “common law marriage” is a legal myth which confers almost no rights whatsoever if things go wrong. It may seem like another unnecessary expense to draw up a legal document setting out your position; however, it is the best way to protect your position and give you legal certainty.
The formality of marriage is not for everyone. Cohabitation is an increasingly common way to build a life with the one you love. A bit of forward planning can safeguard both of you from expensive and traumatic legal battles down the line. Either a barrister or a solicitor (there’s no need to go to the expense of using both) can advise on your particular needs. It’s not about being selfish, but about mutually respectful partners making the legal side of their relationship clear. Once that is sorted, both of you can get on with the non-legal side of cohabitation: creating a home together.
David Peachey and Charles Irvine are both barristers at 1 Gray’s Inn Square Barristers’ Chambers and specialise in property, probate and trusts in the home. They can both accept instructions without using a solicitor to advise clients on these issues and help draft agreements protecting your legal rights.