The LGBTQ+ community and the Family Courts

We have come a long way in the Family Courts in recognising all members of our community when considering what is acceptable in family law. 

A prime example is marriage. 

Historically, only a heterosexual couple could formalise their union by marriage. However, with the formation of the Civil Partnership Act in 2004, same sex couples were able to legally formalise their union which gave them almost equal rights to married couples. Since then, we have grown even further and with the introduction of the Marriage (Same Sex Couples) Act in 2013, the law now recognises a marriage between same sex couples. 

This is certainly a move in the right direction. Not only are same sex couples able to refer to their union as a marriage, the marriage itself can now be solemnized through a religious ceremony.

Notwithstanding the progress made so far, the system is by no means perfect. There are still differences in place which can cause difficulties. For instance, if your spouse has committed “adultery” with a person of the same sex and you wish to divorce them based on “adultery and intolerability”, surely you should be able to do so. 

Unfortunately, this is not the case. The reason for this ambiguity is that in law, “adultery” is committed if there is sexual intercourse between a man and a woman. However, this is not to say that you cannot divorce your spouse, as other factors are likely to be available to you and references to “adultery” can still be made in the petition.

Common law marriage in the LGBTQ+ community

Although the law has changed to equalise rights for married couples, “common law marriage” remains a myth as it is still not recognised as a formal union. 

This means that your rights are different to a couple who have formalised their union through marriage or civil partnership. If you are cohabiting with your partner as a spouse but have not registered your relationship through a legal ceremony, in law you will only have limited protection when it comes to property and finances. If you are unsure of your legal position, please do not hesitate to contact one of our family lawyers for some free initial advice.

The different types of families today

The courts are not only moving forward with relationships but are also recognising the different types of families today. The Family Courts do not discriminate between what you may consider to be a traditional family of heterosexual parents and today’s family, which may consist of parents who recognise themselves as a part of the LGBTQ+ community. 

As far as the courts are concerned, parents are parents, regardless of their sex or identity. It is the child’s right to have both (or all) parents involved in their life and so the court will also consider the involvement of every parent as the starting position. 

It is important to note that, in England & Wales, not every parent will be considered as a “legal parent” or someone with “parental responsibility”.

What does legal parentage mean?

Legal parentage means “a connection which affects a wide range of areas such as your child’s nationality, inheritance and your financial responsibility for your child.” 

Parental responsibility means “all the rights, duties, powers, responsibilities and authority which, by law, a parent of a child has in relation to the child and his property.”

You may not be aware, but in England and Wales, a child can only have a maximum of two legal parents, but more than two people can have parental responsibility.

Who are the legal parents in a same sex couple?

In heterosexual couples, the two legal parents are usually the biological father and the birth mother. However, with same sex couples this is not always as straightforward. 

With same sex couples, the female partner who gives birth to the child will automatically be the first legal parent (regardless of any genetic link to the child), whereas the identity of the second legal parent will be determined depending on what was agreed at the time of conception, how conception took place, and where conception took place. 

If you are a male in a loving same sex relationship but have no ties to the birth mother, you are likely to need a Court Order to gain parental rights.

Parentage and parental responsibility - what should you do?

The law surrounding parentage and parental responsibility is complex and so if you are considering becoming a parent, are already a parent, or are thinking of helping a friend but do not wish to be financially responsible for the child, we suggest you give us a call to obtain some initial legal advice. 

Pre-planning can save stress and costs of contested court proceedings in the long run and may even assist to avoid court all around. In fact, you do not only have to seek advice when there is a breakdown in your relationship - you may need parental rights for day-to-day care of your child such as speaking to their GP or their school.

Please note that whilst this article has referred to individuals within the LGBTQ+ community, the same law does not apply to everyone. The best thing to do is to seek legal advice on your personal circumstances. We can offer a free 15-minute telephone call to see how we can help you and would be more than happy to discuss these matters with you.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.