What if we are a same sex couple?
Much of the law surrounding cohabiting couples is the same whether you are in a heterosexual, gay or lesbian relationship.
However, there are a few areas where the same rules do not apply.
Firstly, it is not possible for the court to make an order under Schedule 1 of the Children Act which addresses the financial needs of any children against a cohabiting step-parent or against a same sex former partner where there is no biological relationship with the child or the couple did not enter into a civil partnership.
If you have children then it is also important to consider whether you are a legal parent. This is different to parental responsibility. Being a legal parent and parental responsibility confer different legal rights and responsibilities.
If you have parental responsibility for a child but you are not their legal parent, then you are not liable to pay child maintenance. However, if you are a legal parent you will be liable for child maintenance if you have separated from the other parent and the child lives with you less than half of the time.
A child can only ever have two legal parents:
- Under UK law, a child's birth mother will automatically be the legal parent when they are born, even if she is not their biological mother
- For a child conceived through a UK licensed fertility clinic, the birth mother can sign an agreement through the clinic to name her cohabiting partner or the biological father as the second legal parent
- For a child conceived outside of a UK-licensed fertility clinic and where the birth mother is cohabiting at the time of conception, the second legal parent, under UK law, will be the donor father. They will then have parental responsibility if they are registered on the birth certificate
- It is possible for a cohabiting couple to apply for the birth mother's partner to adopt the child. That way, the birth mother’s partner can become a legal parent and acquire parental responsibility
- Who can be a legal parent where a child is conceived through donor insemination, is determined by the Human Fertilisation and Embryology Act (2008). A child can have two mums or two dads named as legal parents, depending on the circumstances.
Gay and lesbian couples have been able to apply for adoption jointly in England and Wales since December 2005. Like heterosexual couples, you can be married, civil partners or living together in an enduring family relationship. It is unlawful for adoption agencies in England and Wales to discriminate on the basis of sexuality. If you have been having fertility treatment, you are normally expected to have drawn a clear line from the end of your fertility treatment. For example, most UK agencies will not assess you for adoption if you are still having fertility treatment and will expect you to wait a period of time before applying for adoption (usually 6-12 months after the end of fertility treatment).
Things are a little more complicated if you are looking to adopt a child from another country. As with adopting within the UK, you need to be approved as a suitable prospective adopter by an adoption agency authorised to deal with inter-country adoptions. However, you will also need to adhere to the adoption eligibility requirements of the country you are looking to adopt from. There is no global consensus about same-sex parenting and so it can be, practically, more difficult for British same-sex couples to adopt from overseas.
Expert legal advice
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