No matter how a family is set up, we all want what’s best for our children. All parents can face emotional and practical difficulties on separation. However, it can sometimes be harder to be certain of your legal rights and responsibilities within a same-sex partnership. The law is still developing and changing to meet the needs of modern families – and there are emotional and legal complexities that relate to each situation.
What does the law say?
A birth mother (the parent who went through pregnancy and childbirth) has automatic legal parental responsibility for that child. This is the case even with a gestational surrogacy, where the egg was donated by the other parent.
A birth mother’s married partner will also benefit from automatic parental responsibility over the child – even if the child does not share any biological connection.
This means that if you are not married to the birth mother but jointly registered on your child’s UK adoption certificate or birth certificate, then you will be treated in the same way as any other separating parents. In other words, you will be legal parents, as well as share parental responsibility.
Otherwise, there may be legal issues to deal with in respect of a non-birth mother’s status. If you are not a legal parent and/or do not have parental responsibility, it might be important to take steps to resolve this. As careful planning is key, it’s a good idea to seek specialist legal advice.
Other complex areas include:
- Children from previous relationships
You may have a bond with your partner’s children from a previous relationship. If you separate, it is possible to apply to the Court to establish contact arrangements or acquire parental responsibility. Whether this approach is appropriate will depend on your particular circumstances.
- Where only one partner has adopted
Until 2005, it was not possible for same-sex couples to adopt children jointly. Some couples got around the rules by having only one partner formally adopt, even though the child was then cared for by both partners. So should you separate now, it may mean there are complex issues to resolve.
What problems could you face if separating?
For mothers in same sex relationships, this can be a highly personal issue, where legal rights can sometimes conflict with emotional perspectives.
Disputes can involve disagreements over who has parental responsibility for a child (legally and financially) and who gets to spend time with them.
If there is a disagreement over spending time with your child/ren, the options open to you include mediation and constructive negotiation. Failing this, you can apply to the Family Court, which will decide what is in your child/ren’s best interests. The law is complex and much depends on your particular circumstances. Depending on what these are, you may also need to get the Court’s permission first before you can make an application.
The Court has traditionally applied a light test, giving parental responsibility to parents who show attachment, commitment and a motivation to parent the child. In cases involving modern families, the decision is often more complicated, where factors such as biology, established attachment to the children, and correctly following fertility clinic or adoption procedures become highly relevant.