Lessons from Olivia Attwood: What Makes a Marriage Legally Valid?

The following criteria must be met in order for a marriage to be legal in England and Wales:

1. Eligibility: both parties must freely consent, be 18 or over and not already married or in a civil partnership.
2. Notice: couples must give at least 29 days' notice at their local registry office stating their intention to marry. They must also have lived in the registration district for at least 7 days immediately prior to giving notice.
3. Venue: the ceremony must take place at a register office or an approved premises, such as a church or licensed premises.
4. Authorised person: the marriage must have been conducted by a person duly authorised to do so (a Registrar).
5. Witnesses: there must be two witnesses present, aged 16 or over.
6. Documentation: both parties must sign the marriage schedule, which is then registered with the local register office.

If you are considering a religious marriage, depending on the religion, a separate civil ceremony may be necessary to legalise the marriage.

If there is no marriage, or a non-marriage that is not legally recognised, such as in Olivia Attwood’s case, matrimonial finance claims as set out above are not available.

Disputes will instead typically fall under the TOLATA framework.

If there are children of the marriage, you may be able to bring a separate claim under Schedule 1 of the Children Act 1989, depending on your circumstances.

The court’s role in TOLATA claims is much narrower, focusing on who owns what and not what is fair. The court will primarily consider legal ownership, the parties' intentions, financial contributions to the purchase price or mortgage, and, in some cases, conduct that may give rise to a constructive trust or proprietary estoppel.

The emphasis is therefore more on property rights and is not on relationship fairness. An example of where this could create an unfair outcome is where you have been a stay at home mother for the duration of the relationship/non-marriage and the family home is in your partner’s sole name.

The MCA, on the other hand, seeks to ensure that fair provision is made for both parties in terms of housing, income, capital and pensions and under this framework, the stay-at-home mother would receive a much more favourable outcome than under a TOLATA claim.

It is important to note that under the TOLATA framework, any contributions to the household expenses alone such as utility bills are unlikely to be enough to prove you have a beneficial interest in the property.

There are ways to strengthen your position in advance should your relationship come to an end and you fall into the category of an unmarried couple who will rely on the TOLATA framework to settle any disputes.

You can enter into a Cohabitation Agreement.

This document will be a deed, meaning it is legally binding on both parties where validly executed.

The purpose of this agreement is to set out how property is held and what will happen in the event that you separate.

This provides clarity for both parties and evidences your intentions should you need to prove them at a later date. It is also advisable to keep records of any financial contributions made to the property.

The law draws a clear distinction between married and cohabitating couples.

The outcome of MCA and TOLATA proceedings can be life-changing and it is essential to understand your position and entitlement in the unfortunate event that your relationship breaks down.

Understanding your position allows you to take steps to protect yourself and your future, such as by entering into a Cohabitation Agreement and keeping accurate financial records.

The recent headlines surrounding Olivia Attwood’s “marriage” are also a reminder to ensure that your wedding venue is properly licensed to avoid a scenario where you falsely believe you are married and then ultimately leave the relationship with an unfair, unworkable financial provision.