Arrangements for children after a same sex divorce or separation

Following the introduction of civil partnerships in 2005 and same sex marriages in 2014, there has been an increase in families and then relationship breakdown between same sex parents.

Finding agreement over issues relating to children can be tricky in any relationship breakdown.  When a same sex couple separate it can raise several unique additional questions regarding arrangements for children and each person’s legal rights when children may be adopted, the parents may benefit from surrogacy or sperm donation, or one partner may have children from a previous relationship.

Linda Pope, a lawyer in the family law team with Miles & Partners Solicitors in London looks at some of the steps and considerations same sex couples need to bear in mind in relation to agreeing future arrangements for children.

Reaching agreement together

In any family breakup, if an amicable resolution can be reached it will benefit everyone involved and especially the children.  If possible, it is best to keep open lines of communication with your former partner.  You may find that difficult initially as emotions may be quite raw immediately following a breakup.

We can assist in those early days, by helping you make arrangements which are focused on your child’s best welfare interests.  This may be by way of communicating with your former partner’s legal representative to agree the way forward, or we could help you organise mediation with your former partner.

Mediation allows you both to discuss matters face to face with a trained independent third party who will facilitate those difficult discussions between you in a calm manner.  We will advise you on your legal position and what a judge would be likely to decide if your case must go to court.  We will also recommend issues which you should try to reach agreement on, such as choice of school, holiday arrangements, and financial provision for your child. You can then confidently discuss arrangements with your former partner, assured of where you stand legally.

If you reach an agreement, we can assist in making sure it is legally binding and formalised to fully reflect what you have both agreed.  This will help avoid any future acrimony as both parties will be clear on the exact terms agreed.

Parental responsibility

If an agreement cannot be reached about arrangements for a child, then it is necessary to consider if you hold ‘parental responsibility’ – this is a legal term to reflect the rights, duties, powers, and responsibilities you have for a child.  It gives you the legal right to make certain decisions over your child, such as what school they attend and if they will undergo medical treatment.

Importantly, if you have parental responsibility you can apply directly to court for a ‘child arrangements order’ stipulating where your child lives and spends time.  If you do not hold parental responsibility, it may be necessary to make a separate application to the court first.  We can advise and represent you in seeking parental responsibility if you do not have it or are unsure.

Parental responsibility arises automatically in a number of ways, for example:

• if you are the birth mother of the child – this includes a mother who carried a child as a result of IVF with a sperm donor;
• if you were married or in a civil partnership with the mother of the child when the child was born – whether through fertility treatment or otherwise; or
• if you adopted your child.

The Human Fertilisation and Embryology Act (2008) defines, in different scenarios who the legal parent or parents of a child will be.  This legislation covers a multitude of situations and it is important that you seek specific legal advice for your own circumstances.

The information in this section only applies to children born after 6 April 2009.  If your child was born before that please contact us for further advice.

Surrogacy and parental orders

Generally, if you had a surrogate carry your child then you may have parental responsibility if you applied for a parental order.  A parental order not only provides you with parental responsibility, but it also extinguishes the surrogate mother’s parental responsibility.

You should apply for a parental order within six months of the child being born.  We can advise and represent you to ensure your application is made correctly within the required timescale.

Step parents’ rights

If your former partner had a child from a previous relationship before you married or entered into a civil partnership you will be considered the child’s step parent – and vice versa. This does not give you automatic parental responsibility, but you can obtain this via an agreement or a court order.

If you cohabited with your former partner and their child but did not marry or enter a civil partnership, then you will not become a step parent.  You may still be able to apply to court for a child arrangement order if you cannot agree arrangements with your former partner and if you can show that you lived in the same household as the child for a three-year period.  There will be some extra hurdles for you to overcome in this case and it is best to take legal advice early.

The court must have as its paramount concern what is in the child’s best welfare interests, and so if you have a close relationship it is still likely the court will want to ensure that relationship can continue and is promoted.

The welfare of your child

The welfare considerations for a child in the breakdown of any relationship require the court to look at considerations such as the child’s age, their wishes and feelings, their education and health needs.  The older the child is, the more weight will be given to their own feelings.

Children can be spoken to by an independent expert as part of the court process to ensure their own views are heard.  This is done in a sensitive and appropriate manner, away from the court, depending on the age and understanding of the child.

We will advise you on the relevant welfare considerations for your child whether you are entering negotiations with your former partner or proceeding through the Family Court.

For further information on any aspect of relationship breakdown or divorce, please contact Linda Pope in the family law team.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.