1. Capacity to enter into marriage or civil partnership
A marriage or civil partnership is a legal contact, and to be valid the parties to the contract must have legal capacity to enter into it. Some of the features of ordinary contract law apply. For instance, a marriage might be invalid if one of the parties has entered into it under duress.
The main concerns, though, as to capacity are that (i) neither party is in an existing marriage or civil partnership, (ii) each party is 16 or older (or 18 or older if the parents withhold their consent to marriage in England, Wales, and Northern Ireland), (iii) the parties are not within the prohibited degrees of family relationship, and (iv), in the case of marriage, the parties are male and female.
2. Pre-nuptial agreement?
In general, pre-nuptial agreements are not binding in England and Wales, but are recognised in Scotland. In recent years, the English courts have, however, become more inclined to give at least some recognition to pre-nuptial agreements.
A pre-nuptial agreement may be useful where one or both partners bring considerable assets to a marriage. In effect, they are intended to protect a wealthy individual from the “gold-digger” spouse They are used more frequently in other European countries and the USA (where they are legally binding).
3. The need to give notice or have banns read
If you are getting married in a civil ceremony or entering into a civil partnership, then you are required to give 28 days’ notice to the registrar. Both partners need to report to the registrar’s office in person in order to give notice.
If you are getting married in the Church of England or Church of Wales, generally you do not need to give notice to the registrar, but the church will require that banns of marriage for your wedding be read on three Sundays during the three month period prior to the wedding date.
4. Advance scheduling
Most venues (including churches) will need weeks or even months of advance notice for a wedding. To be legally valid, the actual wedding ceremony must take place between 8:00 am and 6:00 pm, so you will need to allow for that if, say, you want to have an evening ceremony and reception or party.
5. Nationality and residence
For church weddings and registrar weddings, there are some special notice requirements if the bride or groom is not a British national or resident. In general, for marriages in England both parties must reside in England for seven days before they give notice of their wedding. If a registrar believes that a couple is entering into a marriage purely for immigration purposes, the registrar has a duty to report that to the Home Office Border and Immigration Agency.
6. Your will
If you have a will, it is automatically revoked when you get married – unless you prepared the will specifically in anticipation of getting married. Since your priorities and responsibilities may change considerably when you get married, you may wish to take account of that in a new will.
7. Estate planning
Marriage offers a number of estate planning opportunities, such as the spousal exemption from inheritance tax (IHT). You can make gifts in any amount to your spouse and they will be free of IHT (unless your spouse is a non-domiciled foreign national, in which case there are limits on the amount you can give free of IHT).
8. Tax planning opportunities
A married couple will have some opportunities for tax planning. For example, a couple can transfer assets to one another without incurring capital gains tax (CGT) liability – which may allow them to plan their affairs so as to minimise CGT on the disposal of a substantial asset. With appropriate planning, they can use each person’s full CGT exemption and potentially benefit from a lower rate of CGT if one spouse is in a lower tax band. It may be worth consulting a solicitor or other tax professional if you believe there may be such opportunities available to you.
9. Second marriages
If the marriage is to be the second (or third or fourth) marriage for one or both spouses, you will want be certain that all of the formalities for the dissolution of previous marriages are in place. That sounds obvious, but there have been cases where an old marriage has not been properly dissolved, leading to the potential for bigamy (which is a criminal offence) or for the new marriage to be void.
In addition, as mentioned above, when you get married your will is automatically revoked. If the marriage is not your first, you may have a will in place that provides for children from your previous marriage or other important beneficiaries. If you want to keep those arrangements in place, you will need to make a new will.
10. Changing names
Traditionally, a married woman takes her husband’s surname. This does not require a name change by deed poll, and for most purposes a marriage certificate will serve as adequate evidence of the name change (although various organisations such as banks, the DLVA, other financial institutions, etc, will have specific requirements as to what they need to see).
Sometimes both people change their names – to a double-barrelled surname, for instance. That will require a legal name change by deed poll. If the wife wishes to use her maiden name as a middle name, that will also require a formal name change by deed poll.
If there are to be name changes, it is a good idea to put together a checklist, which should include the Identity and Passport Service, the DVLA, your bankers, credit card issuers and so forth. The Identity and Passport Service has a procedure that enables people to get a new, married-name passport in advance of the wedding.
Getting legal advice
Beyond the basic question as to whether you and your prospective spouse are ready to take the vows and make things “official,” there are a lot of things to think about when it comes to getting married or entering into a civil partnership.
A solicitor who specialises in family law (and possibly estate planning and taxation) may be able to help. A quality-assured solicitor matching service, such as Contact Law, can help you to find a qualified legal professional in your area for free.
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