On 23 March 2020, the UK Government responded to the unprecedented pandemic sweeping across the world by introducing an equally unprecedented lockdown in England, with the devolved nations of Scotland, Wales and Northern Ireland immediately following suit.
The lockdown meant that all wedding ceremonies were stopped immediately, and despite the recent transition in England from 'stay at home' to 'stay alert', and the loosening of the rules around exercise and outdoor activities, wedding ceremonies still cannot take place.
However, on 14 May 2020, Northern Ireland illustrated the differing approaches across the UK to leaving lockdown by permitting marriage ceremonies when at least one party is terminally ill. It tentatively announced on 28 May 2020 that it intends for all marriage ceremonies to be allowed from 8 June 2020, if they take place outside and no more than 10 people are present. Wales has since announced that, from 1 June 2020, marriage ceremonies involving a terminally ill party are permitted. While there have been reports that England is considering relaxing the rules on wedding ceremonies, there is yet to be any official indication from the government that such changes will be introduced anytime soon.
While the Northern Ireland 14 May announcement was described as an "act of compassion", it also has significant legal implications and highlights the problems faced in England where no such exemption applies and marriages do not go ahead (so couples remain unmarried).
Family Law Implications
The concepts of 'cohabitation rights' and 'common law marriage' do not exist in England and Wales. Cohabiting couples do not acquire rights to each other's property simply by virtue of their cohabitation (unless they have entered into a binding Cohabitation Agreement beforehand or during the period of cohabitation). Indeed, save for very limited claims on the death of the other or an ability to show that one party has somehow acquired an interest in the other's property by way of their actions, cohabitants do not have claims against each other's assets or income should the relationship end. Therefore, unless the couple is married, the law does not recognise the closeness of their relationship in any tangible way – this can cause complications in relation to claims against each other and rights to property when the relationship comes to an end.
Testamentary Implications
When a person marries, any existing Will that they have will be automatically revoked. A key exception is if the Will is made expressly in contemplation of that marriage. It is always a good idea to draft a Will in contemplation of marriage, when a wedding is imminent. The Will should be carefully drafted so as to avoid any ambiguity.
In cases where the anticipated marriage never occurs (possibly because the couple separate or maybe because one party dies after an unanticipated delay to the planned ceremony), whether a Will made in contemplation of a marriage is effective will depend on the specific wording of the Will. It would be sensible to review the Will carefully in this scenario and to get advice on the situation so that appropriate action can be taken if necessary; it is always important to minimise any potential ambiguity or cause for dispute in respect of a Will.
Such a review could consider what consequences, if any, the postponement of the marriage has on the effectiveness of the Will and on estate planning generally.
Tax Implications
The exemption from Inheritance Tax for assets passing between spouses may sound like a cold calculation to consider, but in the case of a couple wishing to marry, especially when one may pass away in the foreseeable future, it should be an important consideration. If "A" wants to pass to her partner, "B", £900,000 on her death, the full £900,000 will pass to B on A's death totally free of inheritance tax if they are married.
However, if A dies before they marry, B would only receive £670,000 of the intended amount, as £230,000 will be payable in tax – tax that wouldn't have been payable if they had been married. This is despite the fact that the couple had plans to marry, before marriage ceremonies were stopped due to COVID-19.
Possible solutions
In recent months, many couples will have had to deal with their long anticipated wedding being postponed. In addition to feeling a sense of loss and disappointment, they will need to consider adjusting their plans to pave a new way forward.
Those who have had their weddings postponed should consider how best to adapt any estate planning they had in place (for example by reviewing any Will), to ensure their rights are safeguarded insofar as is possible and to best reflect the kind of proprietary rights they would each seek to have post-marriage. A review of their existing proprietary rights may also be appropriate. For instance, if both parties contribute to the upkeep of their joint home, and intend it to be jointly owned by them both, but only one party is named as the legal owner, it may be worth considering entering into a binding Cohabitation Agreement or transferring the property into joint names, and then determining if the equity should be held as tenants in common or joint tenants. The appropriate solution may differ from couple to couple and it is important to ensure there is clarity about the effects of any measures taken. Some couples may also wish to use the time to consider entering into a pre-nuptial agreement well ahead of any postponed wedding day.
So while wedding plans may be on hold for now, there are important steps to consider to best protect a couple's position during this hiatus, and plan ahead for the different eventualities that the next few months may hold.
"In this article "marriage" and "civil partnership" are interchangeable".