What happens when same-sex parents separate?

child holding a purple dotted umbrella

Female same-sex parents

If you are female same-sex parents (whether cis or trans) and you are both registered as parents on your child’s UK birth or adoption certificate, then you will share legal parenthood and parental responsibility. Like any other parents, if you cannot agree living and contact arrangements after separation the family court will need to make a decision.  Find out more about how the court deals with disputes about child arrangements.  You will also both be financially responsible for your child following separation.

Things are more complicated if you are not both legal parents.  You may want to know how it will affect your position if you are not your child’s legal parent.  This is always a difficult question to answer, as a great deal depends on the particular circumstances. Generally speaking, the court will look first at the child's welfare and if the child has an established attachment with a parent, the fact that the parent is not a biological/legal parent should be irrelevant. However, in practice biology can be important.  In the case of Re G (2006), the House of Lords overturned a ruling transferring care to a non-birth mother, saying that the birth mother's special connection with the children had not been given enough weight.  

Dealing with the non-birth mother's status
Even if a separation is amicable, there may be legal issues to deal with in respect of the non-birth mother's status.  If she is not a legal parent and/or does not have parental responsibility, it might be important to take steps to resolve this.  Careful planning is key, since certain options may be lost following a separation or divorce/dissolution.  Find out more about the legal status of non-birth mothers.

Issues of status are sometimes hotly contested.  In Re G (2014), the Court of Appeal upheld an appeal by a non-birth mother who had been denied parental responsibility in a legal battle with her ex-partner.  The court said that her care of the twin children and the fact that she was the biological mother (given that the children were conceived through an egg transfer) had not been given enough weight.  In Re E and F (2013), a same-sex couple had conceived a child together at a UK fertility clinic, and the birth mother successfully argued that the non-birth mother was not a legal parent because the clinic had failed to follow the procedures correctly.

Financial responsibility and child maintenance
Child support issues depend purely on a parent's legal status. This can have unexpected outcomes in cases involving female same-sex parents, since a non-birth mother who is not a legal parent might have no financial responsibility for her child following a separation.  In the case of T v B (2010), the court decided that it had no power to order a non-birth mother to pay child support, even though the court had already awarded her shared care and parental responsibility.  Find out more about financial provision for children.

Male same-sex parents

If you are male same-sex parents (whether cis or trans) and you are jointly registered on your child’s UK adoption certificate or birth certificate (usually after the grant of a post-surrogacy parental order), then you will be treated in the same way as any other separating parents, as you will both be legal parents and will share parental responsibility.  If you cannot agree living and contact arrangements after separation, the family court will need to make a decision.  Find out more about how the court deals with disputes about child arrangements.  You will also both be financially responsible for your child following separation.

Things are more complicated if you are not both legal parents with parental responsibility.  This might include children in the following circumstances:

Known donation and co-parenting arrangements - Usually the birth mother will be your child's legal mother (and her spouse or partner may be the other legal parent) which means that one or both of you is not a legal parent, and may not have parental responsibility.  If you separate, resolving contact arrangements can be particularly complicated given that the child may have three or more parents who all need to have a meaningful relationship with their child.  As with any children dispute, it is best to reach an agreement, and sensitive mediation may be a very good way of achieving a solution if your child has more than two parents.  If you cannot agree, then one or more of you will need to make a court application for a child arrangements order.  There may also be complex questions around who is financially responsible for your child if you cannot agree, since financial responsibility is linked to legal parenthood. 

Surrogacy arrangements where a parental order has not been made - Find out more about what happens if parents through surrogacy separate without having obtained a parental order.

Children from previous relationships - You may have a relationship with your partner's children from a previous relationship.  If you separate from your partner and cannot agree contact arrangements, then you may want to make an application to the court for a child arrangements order or for parental responsibility.   Whether that is appropriate will depend on your particular circumstances.

Where only one partner has adopted - Until 2005 it was not possible for same-sex couples to adopt children jointly, and in practice some couples got around the rules by having only one partner formally adopt, although the child was cared for by both partners.  If you separate, that may mean that there are complex issues to resolve, particularly around financial responsibilities and parental responsibility.  As with any dispute about arrangements for a child, you will be expected to agree living and contact arrangements, and the family court can make a decision if this is not possible.

Have we answered your question? Would you like advice on your personal circumstances?

Email us at hello@ngalaw.co.uk or call on 020 3701 5915 and we will explain how we can help.