Going through a divorce can be a challenging time for all families, particularly for those who do not share a biological connection. When same-sex marriages break down, children of such divorces are particularly vulnerable because they not only run the risk of losing their non-biological parent, they may also end up having fractured relationships with their siblings. For instance, a biological parent may attempt to use his or her biological status as a legal manoeuvre to block the n
on-biological ex-spouse from seeing their children. In this regard, the non-biological parent may be bullied into believing that they have no parental rights concerning their children and be forced to stay away. As such, it is imperative that same-sex couples who are thinking about becoming parents also take into account the legal ramifications of their decision, which should include a frank discussion with their significant other about what happens in the event that the marriage breaks down.
To explore this subject further, let us consider what happens when a same-sex couple decide to become parents. More specifically, consider the hypothetical scenario where one partner elects to be the egg or sperm donor, thereby automatically becoming the biological parent of the child. Accordingly, this raises three questions: How does the non-biological parent obtain legal parental rights? Do such rights exist in the UK for same-sex couples? If not, what recourse is available for same-sex couples to protect themselves from losing their relationship with their non-biological children?
A non-biological parent can make a claim for legal parenthood by way of adoption or co-parenting arrangements. For example, the non-biological parent may go through the formal legal process of adopting the child which would establish their legal rights as a parent. Similarly, co-parenting arrangements can be seen a more flexible approach where the same-sex couple drafts a parenting agreement in advance of the birth of a child. In this parenting agreement, it should clearly state in writing that it is the intention of both parents to jointly share in the responsibility of the upbringing of the child, irrespective of biology and even in the event of a dissolution of marriage.
In terms of assessing whether non-biological parents have any parental rights, it wasn’t always clear under English law. For example, there was a legal presumption of parentage that automatically applied to a child born to a married woman which recognised that such child was also a child of her husband’s. But what if that woman was in a new relationship with another woman, or if she was carrying the baby as a surrogate for a homosexual couple? Until recently women in same-sex unions did not benefit from the presumption that their spouse was also the legal parent of their child. Since the introduction of key legislation, the Human Fertilisation and Embryology Act 2008, these disparities have been rectified. The legal partner of a mother – whatever that partner’s sex – can be added to a birth certificate by virtue of their status as married or civil partnered persons.
In surrogacy cases the couple or person receiving the baby can apply for a Parental Order which ends the legal relationship between the birth mother and makes the applicant(s) the legal parent(s) of the baby.
However, the Act doesn’t necessarily guarantee that you will be able to maintain a relationship with your child after divorce. But don’t despair, a non-biological parent will have exactly the same legal rights as the biological parent. And even those who have never taken steps to formalise the legal relationship with a child can benefit under the new Child Arrangements Programme. Anyone who has lived in the same household as a child for three years or more can apply for a Child Arrangements Order – a court order setting out where a child lives (if that is in dispute) and with whom they spend time. The new Programme, which has been in force since April 2014, effectively allows contact to be formalised between an adult and a child where there is no legal or biological relationship. This can benefit grandparents who have lived with a child, siblings and a mother or father’s long-term partner who did not take steps to formalise the relationship but nevertheless treated the child as their own for a period.
Our best advice is that given the legal intricacies involved with same-sex divorce and parental rights, it is best to establish legal arrangements at the outset. But if you haven’t, all is not lost. Steps can be taken further down the line to formalise the relationship in many cases.
Should things go wrong, our key advice is to have a good team to support you. At Grayfords we have experience of helping same-sex couples resolve disputes about child residence and contact and disputes involving the Human Fertilisation and Embryology Act. Call the experts today on 020 7100 6100 to find out how we can help.
