The law within England and Wales has evolved towards gender neutrality, with civil partnerships being possible from 2005 and same sex marriage being introduced in 2013.
Below are some of the frequently asked questions we receive regarding the LGBTQ+ community and the area of family law.
Is there anything I should consider before getting married or forming a civil partnership?
When you get married or form a civil partnership, you join your finances with your spouse/ civil partner. This can have implications in the event that your relationship breaks down in the future.
A pre-nuptial agreement will consider the financial landscape and allow you and your partner to discuss a fair and reasonable way to divide your finances, in the event your marriage/ civil partnership does break down.
This is particularly relevant if you want to protect family wealth or if there is a difference between the assets you are each bringing into the marriage/civil partnership.
I am not married/in a civil partnership with my partner, what happens to our jointly owned property?
Jointly owned property can be held in different ways, and it will be important to understand how the property is held before considering the options available.
If you are not able to agree what to do with the property, the Trusts of Land & Appointment of Trustees Act 1996 (TOLATA) governs the steps you can take to resolve matters.
My marriage/civil partnership has broken down, how do I get divorced?
If you are in a civil partnership, you can apply to have this dissolved. If you are married, you can apply for a divorce. Both of these processes can be completed online.
What do we do about our finances?
As part of the divorce or dissolution process, financial claims will arise which also need to be dealt with. You will both need to consider the assets you have and how to divide these. The agreement you reach will need to be approved by a court and a solicitor will need to draft the documents needed for you.
If you have a pre-nuptial agreement, a copy of this will be needed to consider what was agreed and if there are any reasons not to uphold that agreement now.
If you are not able to agree, a solicitor can assist you in the various options available to help you navigate this, and decide on the most appropriate way forward. Court proceedings are an absolute last resort, due to the time delay and cost involved. At Moore Barlow, we will consider the options available and how best to help you reach a financial settlement and if you have children, maintain a positive co-parenting relationship.
Find our more about Finances and Divorce
How do we agree arrangements for our children?
The best people to consider the arrangements for your children are you. It is in everyone’s best interests for you to work together to come to an agreement, and to begin building a positive co-parenting relationship, which will benefit your whole family.
If you need advice or assistance to come to an agreement, there are options which can assist you such as mediation or arbitration. The best option for you will depend on your circumstances.
Making a court application should be the last resort, and the courts are currently inundated with applications which mean any resolution via the court can take over a year to achieve. This can leave you all in flux for a significant period of time.
It is important to remember that your former partner/spouse will be your co-parent and your children should remain at the forefront of any decisions you make. This can be an emotionally challenging time, and your children will need stability and reassurance from you both.
Find out more about Divorce mediation
Will my children have a say?
If you cannot reach an agreement, and you find yourself in court proceedings, the court will consider the wishes and feelings of your children. The older your children, the more weight given to their wishes and feelings. The court’s paramount concern is the welfare and best interests of your child. If you are in mediation then your children can be spoken to by a Child Inclusive Mediator if both of you and your children agree.
Do I have parental responsibility?
Parental responsibility arises in different ways, and how your children were conceived will impact who has parental responsibility. For children born after 6 April 2009, parental responsibility can arise from:
- Birth mother of the child (including as a result of IVF with a sperm donor);
- Married or in a civil partnership with the mother of the child when it was born;
- If you adopted the child; and
- Generally, via parental order if your children was born via surrogate.
I am a step parent, do I have parental responsibility?
You will not have automatic parental responsibility. If you were married to your children’s parent then you can gain parental responsibility by agreement or applying for a court order.
If you were not married or in a civil partnership with the parent, then you will not be considered a step-parent. You may still be able to apply for a child arrangements order if you cannot reach an agreement, and if this is the case then contact of Family and Divorce lawyers to explore if this is a possibility.
Do I have to pay maintenance for my children?
Whether there are any financial obligations will depend on the contact arrangements for your children and whether you are a legal parent, which is different to whether you have parental responsibility.
I want to relocate with our children, what do I do?
Relocating will have an impact on your children and your co-parent. Before relocating, you will need to discuss this with your co-parent to obtain their agreement. You will need to consider how your children will spend time with your co-parent.
If you relocate abroad without consent, your co-parent can apply for the return of your children. If you relocate within England and Wales, your co-parent can make an application to the court for your children to be returned. In either situation, this will cause stress or your children and therefore any relocation needs to be managed carefully.
We can assist in a situation where you wish to relocate, but your co-parent does not agree; and help you to manage the situation or make an application to the court if so required.
We are considering surrogacy, what is the process?
Surrogacy is a pathway, with multiple steps, including:
- Deciding whether surrogacy is the right path and if so, which type of arrangement is suitable
- Deciding on the right surrogacy support organisation for you
- Choosing a surrogate, considering the legal parents and donors
- Considering whether a surrogacy agreement will be of benefit
- Conception – own arrangement or fertility clinic?
- Transfer of legal parenthood
How can Moore Barlow help?
Our experienced family team can provide advice in relation to separation, divorce, the division of finances or arrangements for your children. We can also offer advice when you considering how to start your family.
If you would like further information, please do not hesitate to contact one of our Family and Divorce lawyers who would be pleased to discuss your needs.
