Regardless of whether you are married or not or have children or not getting legal advice early is key so that you have the correct information in relation to your particular situation right at the outset.
Family Law is an art and not a science and so what happened to your friends when they broke up, won’t necessarily be the same outcome for you. Getting that advice does not have to be seen as the first step on the journey into battle.
Whilst a relationship breakdown is one of the most stressful situations you may encounter, especially if there are children involved, the right approach will hopefully help you reach an amicable solution so that you can both move on as quickly and as painlessly as possible.
The actual outcome for you will depend on many factors, the first being whether or not you are married, in a Civil Partnership or co-habiting.
These are discussed in detail below, but what we have been asked, many times also, ‘is what happens when our child or children are born through surrogacy does this change things?’
You have a Parental Order
Where children have been born through a surrogacy arrangement overseas or in the UK, it is likely that the parents will have obtained a Parental Order.
This Order gives both parties equal legal status and Parental Responsibility, they both appear on the new birth certificate and so have equal status in family law. As such upon separation, the court will treat them in the same way as other parents.
The court will consider a child arrangement orders, for whom the child will live with and spend their time with in much the same way as any other family separating regardless of who is or isn’t the biological parent.
Have not yet completed the Parental Order Application
If, however, a Parental Order was not yet been obtained this does make things more complicated. Technically the birth mother remains, according to UK law, the legal parent along with her husband if she is married, or the intended parent who is genetically related to the child if that is who was placed on the original birth certificate.
This makes contact arrangements for the intended parent who is not genetically related more difficult.
However, if you can evidence that it was the intended parent’s objective to have a parental order, but they split before it was obtained, the court can interpret the law in favour of the parties and grant the parental order giving both intended parents parental responsibility regardless of the child having two homes.
This was successfully argued, by this firm, in the case of K v L and another (2019) EWFC 21 making a precedent accordingly.
If obtaining a Parental Order is not possible (for example if the surrogate does not consent), then matters will be even more complicated on separation as potentially one, or both parents will lack parental responsibility.
Early specialist legal advice will be essential in understanding your rights.
Have not applied for a Parental Order and now it is beyond the 6 months deadline
We always recommend you apply for a Parental Order, even if you may have missed the deadline, to give you both and your children the requisite position.
If you have not applied, the court may consider allowing an application to go through (even if outside the 6-month time limit) in order to formalise the legal status of the parents.
You will need to explain why you did not apply and have the information required to support the application. The consent of the surrogate will still be required before the court can grant the Parental Order.
No parental order and now splitting up
In this case the legal status of the intended parent who is not genetically related will be in question as legally the birth mother still remains one of the parents.
Addressing contact arrangements, in these circumstances, will be extremely complex if its contested and very much at the court’s discretion. The court will always consider what is in the best interests of the child regardless of the position of the parties involved.
This though gives that parent uncertainty and if the intended parent who is genetically related will not consent to shared contact or parental rights, they could seek to use this at court to the others detriment.
The court will consider the position of the child and what’s best for them; how old the child is and how long the child has lived with both parents as well as the intentions of both parents, but the costs and uncertainty should be avoided before you get to this position if you can.
As such we do strongly advise parents to address their children’s parental order as soon as possible, and its never too late, to give the entire family true certainty.
The separation/ divorce and finances
There is a large demographic of people who choose to cohabit rather than make their relationship legal through marriage or Civil Partnership. The first thing to make clear is that there is no such thing as a “common law spouse”.
It is a myth. Co-habiting couples have no legal protection on relationship breakdown, as those who are married or Civil Partnered have.
If you own property together, where the legal title is in your joint names, your interest is protected by that legal ownership – but you will still face court proceedings if you cannot agree on how that legal interest should be realised after the breakdown of the relationship.
Questions which arise in these circumstances are: Should you sell? Should one buy out the other? If so, at what price? Should one be compensated for improvement works they have paid for?
If, however, you live in a property owned wholly by your partner and you split up, you will have no legal rights to that property, but you may wish to assert a beneficial interest, usually based on having increased the value of that property by putting money into it.
Whilst this is a “family issue”, in this scenario we are clearly in Trust Law territory and the rules and procedures are complex.
The court will look at what the parties intended and whether there was any detrimental reliance on that common intention where it would be unconscionable to deny the claimant’s interest. Not straightforward and early advice is key.
In cohabitation claims, the court does not have the wide discretionary powers as it does when dealing with married couples or those in a Civil Partnership.
There are also very real costs risks when undertaking these cases and therefore seeking advice from a specialist solicitor is the best route.
If cohabiting couples have children, then an application under Schedule 1 of the Children Act 1989 often follows. Whilst the Child Maintenance Service retains jurisdiction to deal with child maintenance following a separation, Schedule 1 is available to co-habiting couples and the two applications are often heard together.
If you are married or in a CP then you must take steps to legally dissolve the marriage or CP. Whilst this is essentially a paperwork exercise, we still currently have a “fault” based system, and therefore, unless you can cite two years’ separation with consent, or 5 years’ separation, you will have to apportion blame on the other party to entitle you to a dissolution.
Hopefully, the law will change to a “no fault” system shortly and separating couples can avoid this unnecessarily adversarial start to the separating process.
In terms of separating your finances, the law deals with both marriage and CP in the same way. Again, getting advice early is key. How the court will deal with your case will depend on a large number of factors.
For example, how long have you been married or CP’d? Did you co-habit before that date? Do you have children? Do you have a pre or post nuptial agreement? What were your respective contributions, both financially and in terms of home making and child rearing?
Disclosure of all financial assets is mandatory. The court will look back at your financial records for the 12 months prior to a court date, but has the power to look back further if one party suspects that the other may have hidden assets in contemplation of a divorce/dissolution.
If parties are able to reach agreement, then a Consent Order can be prepared by a family lawyer and then lodged at court. If agreement cannot be reached, then court proceedings must be issued and the whole process may take up to 12 months and beyond to conclude.
Becoming parents is one of life’s most precious events. And becoming a parent as a same sex couple requires careful planning, usually involving adoption or surrogacy or fertility treatment.
The court’s paramount consideration is the welfare of the child. If court proceedings are necessary, then it is likely that the court will appoint a court welfare officer from CAFCASS to report on their recommendations.
Where possible mediation and an agreement on the child’s arrangements should be sought.
Separation is not a nice topic, but we actively try to encourage people to protect their position by making themselves aware of their rights, protecting themselves and their children as much as possible in advance and upon separation.
Resolution, mediation, consent and agreement are the key words that run our family files, but where this is not possible, and matters proceed to court parties need to be informed to make the right choices specifically for their situation.
For more information contact our Family Team who specialise in Family & Child Law; LGBTQ+ Equality and surrogacy / Fertility Law.[Published in Attitude]