Marriage v. Cohabitation In England

This post recaps an answer I provided on marriage v. cohabitation in the U.K. that I made at Law.SE while stripping away parts that are irrelevant in the context of a blog post.

U.K. Law Is Mostly Not Uniform On This Subject

Unless otherwise clearly indicated, I am referring solely to the law of England and Wales. Most laws related to rights incident to marriage are not uniform in the U.K. Instead, Northern Ireland, Scotland, and England and Wales, each have their own separate laws on these subjects, although the differences between them are more differences of detail than of broad conceptual structure at a "forest" level. All references to England below are to England and Wales whether this is expressly stated or not.

Who Is Compared?

The comparison I am making is generally between married people and unmarried cohabitants, as the law that applies between total strangers isn't really analogous in most cases. (Even though it is theoretically possible to have a married couple that never significantly cohabitates.)

While the question is specific to a couple with children, formal rights in relation to the children of a couple are only slightly different in theory. But, as discussed below, the limited size of child support payments make the differences between married couples with and without children in divorce cases, significant anyway because there is a right to property division and spousal maintenance in addition to child support for married couples but not for unmarried couples.

Marriage v. Civil Partnerships In England

In most, if not all, circumstances, couples in a "civil partnership" receive the same legal treatment as married couples in English law, and you may assume that they are mostly equivalent for the purposes described below. England also has same sex marriage, but a significant number of civil partnerships, most entered into between 2004 when they become available and 2013 when same sex marriage was allowed, remain in existence and have not been converted into marriages.

Getting Married And Ending A Marriage

Common Law Marriage v. Formal Marriage

Despite being the source of the doctrine historically, England no longer has "common law marriage". Common law marriage was abolished in England in the Marriage Act (1753), although it wasn't as clearly established as it is now in common law marriage jurisdictions even before then. An unmarried couple can now become a legally married couple in England and Wales only by filling out the proper government forms and presenting them to the proper government officials.

According to the same source, Scotland began formal marriage registration in 1855 (which was previously documents only by the church) and once had four forms of "irregular marriage", three of which were abolished prospectively (i.e. new marriages could not be formed in this way) in 1940, and the last of which was abolished prospectively in 2006. Common law marriage outside of England and Wales, when it did exist elsewhere in the British Commonwealth, was or became closer to the Scots law practice than the historical English practice. Other parts of the British Commonwealth and United Kingdom mostly also abolished common law marriage, but did so later than England did. India, however, has a legal doctrine quite similar to common law marriage today as a legacy of British law, for members of some religions, and Australia, Canada, and Ireland have recognized somewhat similar concepts by statute or local case law innovations. Notably, common law marriage had not been abolished in the American colonies at the time that the United States gained independence in 1776 (although it took a while for the British to diplomatically recognize this political reality).

In the time period from 1753 to 2006, the formalities required to get married were more lax in Scotland than in England, so it was common in that time period for couples for whom the formalities of the English marriage system were inconvenient to travel to Scotland to marry. In addition to the reality of this situation, this is a prominent feature in many fictional novels set in this time period. As a result, there is an ample case law in English and Scottish courts over choice of law issues related to this reality. This case law was referred to regularly in the late 19th century and early 20th century by U.S. courts addressing choice of law issues related to marriage and divorce, particularly in cases involving marriages and divorces entered into in Mexico and the Caribbean in an effort to evade legal restrictions present in the home states of the couples involved.

In most circumstances, however, the law of England and Wales will recognize the validity of a marriage which was legally entered into under the law of the place where the marriage where it was entered into, even if that marriage didn't comply with English law regarding what is necessary to get married.

Terminating A Marriage In England Then And Now

Also, like all other common law jurisdictions (and so far as I know, all other civil law jurisdictions), but unlike the situations in Islamic law, it is impossible in England and Wales to end a validly existing marriage by any means other than the death of a spouse or a court order decreeing that the marriage has been dissolved. Also, if a couple was not validly married, even though there could reasons someone might think that they were validly married, a court can clarify the situation by annulling a putative marriage.

Historically, since England Christianized for the last time (after becoming almost entirely pagan after Anglo-Saxon invasions by the end of the 6th century that had been preceded by partial Christianization). The restoration of Christianity in England began about 600 CE, and had run its course well before the Norman invasion of 1066 CE, which is at the root of the modern English legal system. Divorce was then prohibited in England until the Anglican Church broke away from the Roman Catholic Church in 1532 in the English Reformation.

The first Christian era marriage in England terminated by divorce since long before the Norman invasion in England was in the case of King Henry VIII's marriage to Anne which was terminated in 1552. The next divorce in England took place no earlier than 1670 (although there were a handful of aristocratic annulments in that time period), and divorce was only available by parliamentary decree until 1857 when the Matrimonial Causes Act (1857) was enacted, with just 324 divorces granted by parliament from 1670 to 1857. The same source notes that:

Only four of the 324 cases were brought by women. A husband needed to prove adultery to obtain a divorce. By contrast, a wife was required to prove adultery and some other especially aggravating circumstance to have the same grounds. Over the years, women learned that brutality, rape, desertion and financial chicanery did not count. 

Under the 1857 Act divorce could be granted on the grounds of marital fault, for which adultery by itself sufficed for a man seeking a divorce and adultery by a husband together with cruelty, or rape and/or incest of someone else was required for a wife seeking a judicial divorce. Then according to the same source:

A private members’ bill in 1923 made it easier for women to petition for divorce for adultery – but it still had to be proved. In 1937, the law was changed and divorce was allowed on other grounds, including drunkenness, insanity and desertion, although there was a bar on petitions for the first three years of the marriage.

Divorce remained particularly rare even after judicial divorce was authorized, especially prior to the 1923 reforms in English divorce law:

In the first decade of the 20th century, there was just one divorce for every 450 marriages. . . . it was not until the Divorce Reform Act 1969 that they reached the level we are familiar with today. This legislation marked an important shift not merely because it added further grounds for divorce, on the basis of two years' separation with the other party's consent, or five years' without, but because it removed the concept of ‘matrimonial offences' and hence the idea of divorce as a remedy for the innocent against the guilty. Today, there are just two marriages for every divorce each year.

Finally, starting in April 2022 the divorce regime there became an almost fully no-fault divorce regime. So, basically, either member of a married couple can unilaterally divorce at will, without that five year waiting period required from 1969 to 2021, but with still having the economic consequences discussed below.

Ummarried Couples Compared

Unmarried couples can break up at will, and court intervention is only available to resolve specific disputes over title to specific property, child custody type issues, and child support type issues, which married couples if they broke up would address in a divorce case. If unmarried couples resolve all issues of property division, child custody, and child support by mutual agreement without ever having resorted to court intervention, court involvement in their break up is not required at all. As noted here:

In response to the increase in cohabitation, several legal changes were made in the UK in recent years. In Scotland, the Family Law (Scotland) Act 2006 provides cohabitants with some limited rights. [ed. England does not currently have similar legislation in force.]

In addition, since 2003 in England and Wales, 2002 in Northern Ireland, and 2006 in Scotland, an unmarried father has parental responsibility if he is listed on the birth certificate. . . .

While 49% of cohabiting couples that aren't married or in a civil partnership believe they have rights under a 'common law marriage', common law marriage has no legal standing in England and Wales. Cohabiting couples aren't automatic beneficiaries or have protections regarding non-joint bank accounts, mortgages, tenancies or pensions, unless the other person is explicitly mentioned as a joint account holder or in the terms as a beneficiary, for example in the event of death.

Notable Legal Implications Of Marriage In England and Wales

I'll list only a sampling of the legal incidents of marriage which are now, or have historically been, among the most important (some of which have been repealed but are mentioned because many people are not aware that the historic legal situation is no longer the case):

1. Paternity

Marriage creates a strong legal presumption (which is in some cases rebuttable) that children born to a married woman are children of her husband:

Until officially declared otherwise, a man is deemed to be a child’s legal father if he is married to the mother at the time of the child’s birth[.]

2. Rape

England no longer recognizes an immunity between spouses for rape. Spousal rape is a crime in England just as it would be for non-married cohabitants.

3. Duty of Support

A spouse has a duty to economically support a current spouse (beyond child support), while unmarried cohabitants do not have a duty of support to each other.

If your partner won't support you, you can ask a court to order them to support you.

When it was nearly impossible or at least very difficult to get legally divorced, this right was used in about a dozen cases a year, almost always by women, often in the form of a lawsuit seeking divortium a mensa et thoro ("separation from bed and board") in the canon law courts of the Anglican Church, usually on the basis of adultery or life threatening cruelty and usually with the woman receiving regular spousal maintenance but losing all custody of her children as a result unless there were extenuating circumstances.

These days, most spouses who are not being supported simply get divorced and receive spousal maintenance and a share of marital property (and possibly child support as well), instead, so the right to bring a lawsuit to enforce this right has largely fallen into dessitude and is rarely utilized in practice. The doctrine is mostly used to justify policies in other areas of the law that assume spouses provide economic support for each other (which they usually do even though this right is rarely enforced with lawsuits).

4. Property Rights During Marriage

During a marriage, the property rights of spouses are essentially identical to those of non-spouse cohabitants.

This is as a result of the Married Women's Property Act (1870) which abolished the doctrine of coverture (which treated a husband and wife as a single economic unit managed by the husband) in England and Wales.

During the marriage title to property controls who owns and controls property in England and Wales for the vast majority of purposes for members of the married couple, just as it does for unmarried cohabiting couples, even though title may be disregarded for married couples in a divorce, and in some cases in connection with inheritance rights.

As discussed in Part 9 below, England and Wales does not have a "community property" regime that is effective during the course of a marriage (although it might recognize the "community property" character of property acquired during a marriage while the couple lived in a community property jurisdiction for some purposes.

5. Income Taxation

Marriage has income tax implications in he U.K.:

If you’re married or in a civil partnership

You may be able to claim Marriage Allowance to reduce your partner’s tax if your income is less than the standard Personal Allowance.

6. Government Benefits, Pensions, And Employee Benefits

Marriage is relevant to rights under some government benefit including "welfare", programs, but the details are too numerous to set forth here. Likewise, marital status is frequently relevant to the rules for public and private pension plans, and sometimes for other public and private sector employee benefit plans as well.

One isolated area where cohabitation can confer rights similar to marriage, however, is in English Social Security laws:

Social security law

Living together has been part of the law since the beginning of the modern welfare state in 1948. The term "Living together as husband and wife" was introduced from 4 April 1977 to mean the same as "cohabiting with a man as his wife" which was used before that date. The term is now "living together as a married couple".

To be regarded as "living together as a married couple" or cohabitating, there are various questions to consider. The question of cohabitation should take into consideration all the six questions, and looking at the relationship as a whole.

Additional details on the six factor test for recognition of an unmarried couple for English Social Security benefits purposes can be found here.

7. Court Testimony

Historically, England had a privilege that excluded from evidence in court cases certain testimony from spouses against each other and certain testimony about confidential communications between spouses. This has now been abolished:

The form of privilege, restricting the admissibility into evidence of communications between spouses during a marriage, existed in English law from 1853 until it was abolished in 1968 (for civil cases) and in 1984 (for criminal cases).

The testimonial part of the spousal privilege was mostly abolished in the late 1800s with further clarification through 1984 in certain domestic violence settings.

8. Immigration

Spousal status is relevant to an immigration application when one spouse is a British subject and the other is not:

Also known as a UK marriage visa, a spouse visa allows married partners of UK citizens to immigrate to the UK because they are married to someone who is 'settled in the UK' - i.e. a person who is ordinarily resident in the UK and has no immigration restrictions on how long they can stay in the UK.

9. Rights Upon A Divorce Or Breakup

As a practical matter, differing rights if the couple breaks up are the single most important difference between being a cohabiting unmarried couple with kids and a married couple with kids.

The difference matters because the less affluent member of the couple gets a much better deal upon a break up if the couple is married than if they couple is not married. The strong rights of a less affluent member of a couple primarily matter because this makes it economically safer for a woman in married couple who has kids to sacrifice her own economic prospects to focus on those kids than for a woman who is an unmarried cohabitant. This also matters because the economic incentive for a husband not to divorce a wife who is economically dependent upon him is much stronger than the economic incentive for an unmarried cohabitant boyfriend/father to not break up with an unmarried cohabitant girlfriend/mother.

Upon divorce, a divorced spouse is entitled to share of the couple's property and/or spousal maintenance (a.k.a. alimony) in excess of child support, which are far in excess of the rights of a non-spouse cohabitant, especially in the case of a long marriage in which the couple's wealth has grown during the marriage.

Non-spousal cohabitants who split up divide their property based upon title to property and have no spousal maintenance obligations to each other so only child support (if applicable) is at issue. Child support and custody are still present between unmarried cohabitants or co-parents who have children together.

In the arena of property division, England does not have what in the U.S. is called "community property". 

There is, instead, a distinction between marital property acquired during the marriage and separate property, and England and Wales has an "equitable division" regime rather than one in which there is a fixed percentage right of each spouse, and marital property rights remain inchoate (rather than vested and presenting existing) until death or divorce. If a property settlement is not reached by mutual agreement a court considers factors including:

• Each partner’s individual assets
• Contributions to the marriage or civil partnership, both financially and emotionally
• Time out of the workplace
• Earning capacity
• Standard of living before the break-up
• Requirements such as catering for disabilities
• Length of marriage
• How old you both are

In practice, the fact that a couple has children together also tends to influence what is equitable in a property division.

The presence or absence of spousal maintenance greatly impacts the practical effect of a split up for a couple with children who are married v. a couple with children who are not married. A marital property settlement and spousal maintenance in addition to child support makes life a lot easier for a less affluent ex-spouse than child support alone.

10. Inheritance

Upon death, a surviving spouse has inheritance rights different from and greater than a non-spouse cohabitant, in the estate of the deceased spouse.

Generally speaking, if there is no will, a spouse has significant inheritance rights, while a non-spouse cohabitant does not. There are also legal limitations on the extent to which a spouse can be denied an inheritance even if there is a will.

While in general, a spouse has testamentary freedom to disinherit a spouse in English law (unlike the vqst majority of U.S. and civil law jurisdictions), in England, the Inheritance (Provision for Family and Dependents) Act (1975) "sets out categories of people that have the legal standing to challenge another person's Will on the basis that they have not been left reasonable financial provision."

Spouses also have greater rights at death than unmarried cohabitants with regard to management of a probate estate of a decedent partner and disposition of a partner's body, at least in the absence of estate planning documents to the contrary.

Transfers to a spouse at death are also exempt from inheritance taxation.

Marital status is also highly relevant in England to the rules for succession to aristocratic titles and for the titles of someone who is married to someone with an aristocratic title. While English law normally makes little or no distinction between legitimate and illegitimate children (which is a function of whether their parents were married), in the area of succession to aristocratic titles and eligibility for titles that imply marriage to someone with an aristocratic title (like the former Queen's Consort), the distinction between married couples and their children, and unmarried couples and their children is very important.

11. Incapacity

Unlike most U.S. jurisdictions, marriage does not, in and of itself, grant strong rights relative to a cohabitating partner, to a role in medical decision making or guardianship proceedings in England.

An adult's "next of kin" is generally their spouse or civil partnership partner, which is not automatic in the case of a cohabitating partner. But, the rights associated with next of kin status are generally limited to notice or information until another basis to be involved in decision-making is established:

As far as the law is concerned next of kin means nothing with the exception of children aged under 18. The next of kin of a child under 18 may be legally entitled to make decisions for or on behalf of the child.

The term usually means your nearest blood relative. In the case of a married couple or a civil partnership it usually means their husband or wife.

Next of kin is a title that can be given, by you, to anyone from your partner to blood relatives and even friends. It is also possible to name more than one person as your next of kin. This is a title that is primarily used in order for emergency services to know who to keep informed about an individual’s condition and treatment.

This means that you have no legal rights as a result of this title. This can create difficulties if you haven’t put additional measures in place to manage your relative or loved one’s affairs. If you do not have any legal rights, you cannot make decisions on their behalf.

Similarly, pretty much anyone can be appointed to be an adult's guardian in England, with no absolute priority for a spouse or a blood family member over a cohabitating partner or any other person expressing interest in the care of an incapacitated person. Marriage is just one factor among many considered in a fairly wholistic manner when deciding between competing applications to serve as someone's guardian.

Cohabitation Post-Divorce By A Formerly Married Couple

A married couple with children that gets divorced and then cohabits post-divorce are not on quite the same footing as a cohabiting couple with children who have never married.

The starting point in such a couple for the rights of the former spouses vis-a-vis each other begins with the divorce decree and any incorporated settlement between the spouses in connection with the divorce. Provisions related to child custody and child support may be modified over time as the children grow and circumstances change. In some unusual but not unheard of circumstances, spousal support duties arising from the prior marriage can be imposed long after the divorce even if spousal support was not immediately imposed at the time of the divorce or was only nominal at that time.

Provisions related to court ordered child custody arrangements, child support, and spousal support normally continue in force until they are spent by the their own terms (e.g. when the children become adults or spousal support established for a fixed time period ends), are modified by a later court order, or the couple remarries.

It is uncommon, but not completely unheard of, for the children of a couple for whom child custody arrangements have been imposed between unmarried coparents or in a divorce at one point, to ever cease to be subject to some sort of court order related to child custody.

Court orders related to children or spousal maintenance cannot normally be adjusted by mutual agreement after a divorce without court intervention.

Remarriage will generally abrogate and cause to become void all provisions in a divorce decree, settlement, or post-divorce court order related to the children, and all provisions with spousal maintenance, while the property ownership and debt obligations of the parties to the remarriage restart from scratch at whatever state they were in immediately prior to the remarriage. Sometimes a remarriage after a divorce legitimatizes the paternity of children born between the marriages.

First Marriages Of A Cohabiting Couple With Children

When a cohabiting couple with children marry, they have all of the incidents of a married couple.

Sometimes, but not always, this will help establish the father's paternity of their children. Court orders related to the custody and child support of their shared children will usually be dissolved (I don't know if any formal legal action is required to do this or not).

Property acquired by the couple prior to marrying while cohabiting will generally be separate property owned by the spouse who was in title to that property prior to getting married.

In a subsequent divorce of that couple, the length of the marriage will not include the full time of their cohabitation, but their cohabitation prior to marriage is a factor which a divorce judge is not prohibited from considering entirely in making an equitable division of marital property and in awarding spousal maintenance.