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Pride Month - Family Law Edition
Despite the Covid-19 pandemic preventing the Pride Parade from taking place, June remains ‘Pride Month’ for the LGBT+ community worldwide.
This blog post aims at covering the advances of the law impacting LGBT+ families and the regulations currently in force.
Civil partnership and marriage:
Couples living in a same-sex relationship were only allowed to become a legally recognised family in 2005, when the Civil Partnership Act 2004 came into force. The first civil partnership was registered in England on 5th December 2005, between two men, Matthew Roche and Christopher Cramp. Ever since, approximately 70,000 civil partnerships have been registered in England and Wales, with the numbers per year reducing dramatically since same-sex marriage became legal.
The Marriage (Same-Sex Couples) Act only came into force in 2014, with the first same-sex marriage being solemnised in England on 29th March. By the end of 2017, more than 25,000 same-sex couples formalised their union by way of marriage in England and Wales.
It is worth mentioning that civil partnerships were extended to opposite-sex couples on 31st December 2019, after the Supreme Court found that the application of the Civil Partnership Act 2004 only to same-sex couples was incompatible with the European Convention on Human Rights.
The Civil Partnership (Opposite-Sex Couples) Regulations 2019 attempted to establish equality. However, it remains impossible for opposite-sex couples in civil partnerships to convert their civil partnership into a marriage, which same-sex couples can do. The reason behind it seems to be that opposite-sex couples could have always gotten married instead of having a civil partnership if they wished to do so.
Between December 2014 and December 2017, there were approximately 14,000 conversions of civil partnerships into marriages by same-sex couples.
Divorce and dissolution:
The law on divorce is very similar to that of dissolution for civil partnerships, and in both cases apply almost identically to same-sex couples and opposite-sex couples. However, same-sex couples are not able to rely on the adultery fact to prove that their marriage or civil partnership has irretrievably broken down.
Once the new divorce rules come into force, removing the five facts, the law applying to all couples will be exactly the same.
Giving birth, surrogacy and adoption:
As the law in England and Wales always recognises the woman giving birth as the child’s mother, female same-sex couples have a much more straightforward process when registering their children than their male counterparts.
The woman who is married or in a civil partnership with the birth mother will be recognised as the ‘female second parent’ of the child for as long as the child was conceived by donor insemination or fertility treatment. The non-parturient mother will be named on the child’s birth certificate and will have parental responsibility.
If the women are not married or in a civil partnership at the time, the mother’s partner can be the child’s second parent if both women were treated together in the UK by a licenced clinic and have made a parenthood agreement. They will have to register the birth jointly, complete a statutory declaration of parentage form and get an order from the court giving the second female parent parental responsibility.
For men, the situation is much more complicated, as the surrogate who gives birth will at first be considered the child’s mother. Therefore, a process through which a parental order is given by the court is necessary before they can be registered the child’s parents.
It is worth mentioning that the court has recognised that motherhood is not connected to gender, but to the act of giving birth. Therefore, transgender men who give birth to their children, regardless of being legally recognised as men, will still be registered as the child’s mother, not father.
Regarding adoption, same-sex couples, in a marriage, civil partnership or even without any formal family arrangement, can adopt children under the law in the same way as opposite-sex couples.