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Should same sex couples take legal advice before starting a family?

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Same sex couples need no reminder of the impact the law can have on their private lives. As we mark 50 years since the 1967 Act, and rightly celebrate the enormous progress that has been made – equalisation of the age of consent; same sex marriage; Gender Recognition Act to name but a few milestones, it is important that we remember there are still areas where the law has the potential to have more impact on same sex couples than on their heterosexual counterparts.

Growing numbers of same sex couples are now doing what typically married couples have always done, settling down and starting a family. For same sex couples wanting a biological connection to their child, the journey to parenthood will necessarily involve a third adult, be it a sperm or egg donor and/or a surrogate. Whilst this can also be the case for heterosexual couples, for same sex couples biology dictates it is always the case. Having to rely upon a third adult makes same sex couples more vulnerable to the legal complications that can arise if the relationship with the third adult breaks down and/or all legal consents and processes are not properly followed to ensure the intended parents are the actual legal parents of the child subsequently born. Introducing a third adult brings with it huge potential for an unintended legal relationship to be established between the third adult and the child.

Added to this is the increase in the number of same sex couples travelling abroad for their fertility treatment or to find surrogates. This adds a further layer of legal complexity. Both the laws of the country of treatment and the laws of the country where the couple intend to raise their family need to be complied with to ensure the parent/child legal relationship is as it’s intended to be. Where there is a conflict of laws between the two jurisdictions it is extremely important to understand which takes priority and to ensure this matches the expectations of all concerned. This needs addressing at the outset to avoid potentially legally irreparable consequence for the couple and their child. The law governing this area is particularly complex and fast moving.

Same sex couples are more likely than heterosexual couples to consider entering into a private arrangement to conceive a child with a well-meaning trusted friend. However, in making these private arrangements, same sex couples need to be aware that the law governing the identity of a child’s parents in these circumstances are very different from the law governing parentage where a child is conceived as a result of fertility treatment in a UK licensed clinic. At a clinic, all parties will be medically screened and also required to sign complex consent forms which are designed to try and minimise the possibility of unintended legal consequences for a child’s parentage at birth. Obviously, with a private arrangement, no consent forms are signed and this means in most cases the identity of the child’s parents will be determined purely by biology which can result in totally unintended consequences of parentage. The ramifications of this will then extend throughout the child’s life in relation to matters such as nationality and inheritance if not addressed.

Given the added potential complications, same sex couples considering starting a family should always take full legal advice before they embark upon their journey to ensure the end result in terms of legal status and responsibility is as they wish it to be. A failure to do this may result in a situation where only one of them has parental rights in respect of their child. If there is an international component it is essential that all nationality and immigration issues are properly resolved before their baby is born.

More information can be found on the laytons.com website.

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Fertility 360

You, Me & Co-parenting

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The term co-parenting is not one that has a formal legal definition, but is a term that is becoming more widely used by the general public.

Previously, reference to co-parenting usually meant a situation where parents who were in a relationship had separated and were no longer living together, meaning they were having to care for their children separately.

In more recent times, the use of the phrase co-parenting includes couples who decide to have a child together, irrespective of their relationship. This might be two friends who both desperately want a child but who are not in a relationship or a same-sex couple who have a child with a friend acting as the third parent to facilitate conception.

In my practice as a divorce lawyer, I see the impact of parental separation and enforced co-parenting on children.  I firmly believe that in those scenarios it is not the separation of their parents per se that causes issues for the children concerned, but the manner in which the adults conduct themselves through the separation process and in particular how they work together as co-parents in different households.  Former partners who can put aside their own difficulties and work together in the best interests of their children can be very effective parents.  Indeed, I can give many examples of happy children following a good divorce and as many examples of unhappy children, caught in the middle of a failing/unhappy marriage.

Co-parents who make an active choice to be such, prior to conception, do not have to cope with the impact of their relationship breakdown on their abilities to co-parent effectively.  However, this does not eliminate disagreements that your typical divorced parents may face. For example, decisions as to whether a child attends state or private schooling or decisions as to religious and moral upbringing.

If there are disputes between co-parents as to what is best for the child, the Court has the power to make orders requiring adults to take or prevent them from taking steps.

In my field of practice, I often see these used where one parent decides they want to relocate, either abroad or to a different part of the UK which will impact upon the amount of time a child can spend with the other parent.  When the child is a baby when all co-parents are living close by, thoughts of moving away may be far from everybody’s mind.  However, over the course of a child’s minority, it is not uncommon for a parent to wish to relocate and this can cause enormous difficulties where previously a co-parenting arrangement worked well.

It is not possible to opt out of being a co-parent in the eyes of the law.  For example, a couple who decide to have a baby but subsequently go on to have other children, cannot decide that they are no longer parent to child number one.  Nor can agreements not to pursue co-parents for maintenance be enforced within the Court system, meaning anybody who finds themselves in a co-parenting situation, regardless of how it arose and any agreements reached, cannot avoid financial responsibility for their own child.

Co-parenting can be a very rewarding experience and provide a happy home life for children to grow up in.  However it is important that anybody who is choosing to co-parent discusses fully with their fellow co-parent the expectations of all involved to avoid, or minimise, the potential for later conflict.  A co-parenting agreement can help address issues at an early stage when all parties want what is best and encapsulates intentions at a time when cooperation is high.

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Legal

When Family Matters

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When Family Matters

The concept of family has changed beyond all recognition in the space of a generation. The idea of a nuclear family unit comprising of a married mum and dad with 2.4 children seems as outdated now as the idea of a world without mobile phones or the internet.

Nowadays, families are whatever we want them to be: parents of the same gender or different genders; civil-partnership, married or living together; children born by a variety of methods and with different genetic heritages. All are regarded the same by society – but not by the law.

The strains on modern family life – whatever shape the family takes, are enormous. However the journey to family begins, it is a sad consequence of those increased stresses within our modern world that separation, dissolution of civil-partnership and divorce are all on the increase.

One of the most common misconceptions I face in my legal practice day-to-day is when dealing with adults, who have lived together outside the legal framework of a civil-partnership or marriage but assume on separation that their financial arrangements will be dealt with in the same manner as their divorcing counterparts. There is a misconception that simply by living together for a period of time you acquire “rights” against your partner upon separation.

This is simply not true. There is no such thing in law as the common law wife.

The act of getting married or entering into a civil-partnership brings with it a legal financial responsibility towards your partner. On separation, the economically stronger partner can be compelled by the court to make financial provision for the economically weaker partner. This may take the form of providing property, cash, maintenance or sharing in pension provision. The court has sweeping powers to impose financial arrangements that the court deems to be fair with one of the court’s considerations being the welfare of any children. The court has the power to redistribute assets, regardless of whose name assets are in, their provenance, or the reasons why the relationship failed.

The same is not true following the separation of a couple who have lived together without taking the legal step of entering into civil-partnership or marriage.

Cohabitees acquire no financial responsibility towards each other, no matter how long their relationship exists. On separation, the property will be shared according to ownership, no maintenance payments are due and pension provision cannot be shared. There is an exception to this where there are children of the family. Child maintenance is always payable between separated parents, regardless of whether or not they were in a legal relationship. Furthermore, a parent can be compelled to settle property for the benefit of children during their minority, meaning for example that one parent can be compelled to provide the finances needed to purchase a property for the children to live in with their other parent. However, that property will be held on trust and will revert back to the paying parent once the children achieve a majority, rendering their former partner homeless.

If you are looking to start family life without being married or in a civil-partnership make sure you understand the legal vulnerabilities of your situation and address them.

The harshness of the law relating to cohabitees can be mitigated by careful planning at a time when relationships are good. Cohabitation Agreements, Trust Deeds and Wills, all regularly reviewed, can be used to ensure financial arrangements on separation match the expectations of all involved and provide adequately and fairly for both the adults and their children.

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Adoption

Are You Considering Adoption?

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There are many reasons why people choose adoption as the way to grow their family. For some it is their first choice, for others it is a decision taken when natural conception and/or fertility treatments have not succeeded.

Whatever the circumstances, adoption is the process through which the adoptive parent(s) assumes permanent legal responsibility for a child. Once the adoption process is finalised, the adoptive parent(s) is the legal parent(s) of the child and there is then no legal difference between an adopted child and one born into a biological family.

As at 31 March 2017 there were 5,440 children in England and Wales seeking adoptive placements. In the year ended 31 March 2017 4,370 children were placed in adoptive placements.

Potential adopters can be single, married, in civil partnerships or unmarried couples. It isn’t just local authorities who look for adoptive placements for children. There are numerous private adoption agencies who also seek adoptive placements for children. All agencies have their own criteria when considering prospective adopters and thus just because you have been turned down by one agency because you don’t satisfy their criteria, does not mean you cannot adopt a child. Prospective adopters are not limited to their local adoption agencies, nor are there restrictions on the number of agencies they can contact.

Whilst all adoption orders are the same in that they permanently sever the link between a child and their birth family in law, not all adoptions are the same. Prospective adopters will need to think carefully about what type of contact, if any, they would wish to have with the birth family. Some prospective adopters are happy to have a completely open adoption where there is a full exchange of information between the birth family and the adoptive family. Other adopters want to completely close the adoption meaning there is no communication or information shared between the two families. There is also a third way, where limited information is shared between the birth family and adoptive family usually via a third party to preserve anonymity. Whilst at first blush it may seem tempting for prospective adopters to want a closed adoption scenario (to protect against disruption by a birth family), that has to be weighed up against the importance to a child of understanding their genetic heritage as they grow older and the ability of adoptive parents to provide that information via first-hand knowledge of the birth family.

Prospective adopters may also have to consider whether they wish to take on a sibling group and/or be considered as potential adopters for any future siblings.

In recognition of the fact that delay in decision making for children is detrimental to their welfare, in recent times a system of concurrent planning for children has been developed whereby children can be placed with foster carers, on the basis that if a return home to their birth family is impossible, those foster parents will go on to offer an adoptive placement. For prospective adopters this can result in a child being placed with them younger and earlier in the process but brings with it the possibility that a child they have welcomed into their family is subsequently returned home to their birth family. In the early stages of the placement, a return home to the birth family is the primary focus of work done with the child. This is something that can be very difficult for prospective adopters to come to terms with and is not something all potential adopters can deal with given the emotions involved.

For more legal advice on adopting please visit the laytons website or call 0161 214 1600 and ask for Liz Bottrill.

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