Same Sex Relationships

Whilst the Civil Partnership Act 2004 introduced the legal recognition of same sex relationships, providing partners with similar rights and obligations to married couples, at midnight on 29th March 2014, gay couples were in a historic change in the law, allowed to get married. By October 2015, over 15,000 couples in the UK had tied the knot, some converting their civil partnerships into marriage and others entering straight into marriage.

The rules governing the dissolution of same sex marriages and civil partnerships are substantively the same as heterosexual marriages, with similar consideration needing to be given to the finances and children.

Couples may also wish to consider entering into a Pre-Nuptial Agreement to protect their assets in the event of separation / dissolution.

Children

Obviously, particular care and legal consideration should be given however, to any children involved either from previous relationships or with external support during the relationship.

The law was changed on 6 April 2009, and the new rules on parenthood for lesbian couples apply only to children conceived on or after that date. They allow both lesbian partners to be treated as parents of a child they conceive together in certain circumstances. Whilst we Berry Smith lawyers can provide you with legal help and guidance regarding same sex relationships, please note the following:-

Lesbian couples who are civil partners or married.

Lesbian couples who are civil partners or married at the time of conception and conceive a child through artificial insemination will both automatically be treated as their child’s legal parents.

This applies both where civil partners/married couples conceive through fertility treatment at a licensed clinic and where civil partners/married couples conceive through artificial insemination by private arrangement at home (for example using sperm donated by a friend acting as a known donor). Nb. This does not apply to conception through sexual intercourse.

The non-birth mother must consent to the conception, although it is presumed that she does consent unless demonstrated otherwise.

The non-birth mother, where treated as a legal parent, can be named on the birth certificate and will automatically have full parental status and parental responsibility, like a married father.

Where a child has a mother and a second female parent, they do not have a legal father.

Lesbian couples who are not civil partners or married

Couples who are not civil partners or married at the time of conception but who conceive together through a fertility clinic in the UK licensed by the Human Fertilisation and Embryology Authority may also both be treated as legal parents. The non-birth mother will be treated as the child’s other legal parent if both partners sign consent forms electing for the non-birth mother to be treated as a parent.

For non-civil partners or unmarried couples to be recognised as joint parents:

  • Both partners must sign the election forms (which will be provided by the clinic) before the date of conception. The forms will not be effective if signed after conception, which means that the couple must be conceiving the child together from the outset.
  • The couple must conceive at a licensed clinic in the UK. Non-civil partners or unmarried couples who conceive outside a UK licensed clinic (for example at a clinic abroad, by private arrangement at home, or through sexual intercourse) will not qualify.

The non-birth mother, where treated as a legal parent, can be named on the birth certificate if her partner consents. If she is named on the birth certificate, she will have parental responsibility (the authority to make decisions about her child’s care). If she is not named on the birth certificate, she will be financially responsible for the child and will be treated as a parent for the purposes of inheritance, but she will not have the authority to be involved in parental decision-making unless she acquires parental responsibility by other means (including by a court agreement or a court order).

When non-civil partners or unmarried couples conceive outside a UK licensed clinic (for example by private arrangement at home) the non-birth mother will have no legal parenthood and will have to adopt the child to obtain parental rights.

Where a child has a mother and a second female parent, they do not have a legal father.

The birth certificate will record the birth mother as the ‘mother’ and her partner as a ‘parent’. No father’s details will (or can) be recorded if two women are named on the birth certificate.

Impact on sperm donors

Donors who donate their sperm through a licensed clinic are not normally treated as being legal parents of the children they help conceive. This means that clinic donors cannot be held financially responsible for maintaining their genetic children, and nor will their donor-conceived children have any rights of inheritance from them.

A donor who donates sperm outside the context of a licensed fertility clinic (for example, a friend or a donor found through a website online) does not acquire this automatic protection and may be treated as the legal father of the child. However, where a child has a mother and a second female parent they do not also have a father. This means that, where a donor donates informally in circumstances where both lesbian partners will be treated as legal parents (including civil partners or married couples conceiving at home), the donor will no longer have any legal or financial responsibility for any resulting child.

Adoption for same-sex couples

It is now possible for same-sex couples in the UK to adopt a child together.

Couples can apply to adopt through a local authority or an adoption agency. You do not have to live in the local authority you apply to.

Surrogacy

Surrogacy is where another woman has a baby for a couple who cannot have a child themselves. It's an option if you are a gay man, where the surrogate mother's egg can be fertilised by either you or your partner's sperm.

In reality, surrogacy is rare because it is difficult to arrange. Although it is legal in the UK, no money other than "reasonable expenses" can be paid to the surrogate, and there is nothing to stop her keeping the baby after it is born. It is also illegal to advertise for surrogates.

Cohabitation

However, where gay couples cohabit, then as when heterosexual couples live together, the parties are treated, under the civil property law rules, as two separate individuals and will be dealt with accordingly. This may or may not lead to a fair result. In this event, you may wish to consider entering into a Cohabitation Agreement.

Links

Divorce

FAQ

Pre-Nuptial Agreements

Children in divorce / separation

Family mediation

Family arbitration

Collaborative law

 

Contact Berry Smith lawyers to help with you legal advice and guidance regarding same sex relationships at family@berrysmith.com or on Cardiff 029 2034 5511 or Bridgend on 01656 645525 for a no obligation discussion or further details.

Back to Family Services

 

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