If you are in (or leaving) an LGBTQ+ relationship, most family law in the UK is thankfully familiar. The courts apply the same legal tests on separation, finances and child arrangements, regardless of sexual orientation, because family law should be fair for everyone. The principles of equality, diversity and inclusion are protected by English and Welsh equality and family legislation, as well as Court practice rules and professional standards rules for solicitors and barristers.
However, in practice, different outcomes may arise for LGBTQ+ couples from those in heteronormative relationships. Some LGBTQ+ couples can still run into legal issues that are specific to how a family was formed, how a relationship is recognised, and how parenthood is recorded.
This guide sets out where things can be different and what your legal protections, rights, and responsibilities are.
How relationship status affects your legal protections
Some members of the LGBTQ+ community may be concerned to understand whether there are different legal rules in family law depending on one’s sexual orientation or gender identity. There are currently no legal differences between the status of LGBTQ+ relationships and heteronormative relationships in English and Welsh family law. In England and Wales, the court’s approach to family law matters will depend on your legal relationship status and whether you are married, cohabiting (i.e. living with), or in a civil partnership with your partner.
Marriage and civil partnerships
If you are married or in a civil partnership, the law provides a clear framework if you separate, including routes for divorce (or dissolution in the case of civil partnerships), financial orders on separation, and matters concerning your children. Married couples can take advantage of the full breadth of legal protections offered by family law, regardless of sexuality. That said, there are other legal differences between civil partnership and marriage, which are worth considering if you are deciding which is right for you.
Cohabitation, and the myth of the common law marriage
If you are cohabiting (living with your partner) and are not married or in a civil partnership, your legal position is very different to married couples and civil partners, even where the relationship has lasted many years. A common misconception is that living together for long enough creates “common law marriage” in England and Wales, but that is not the case and making that assumption can cause significant legal and financial issues when a relationship ends, especially if property is held in one person’s sole name, and the other person’s contributions were informal.
Agreements that protect you and your partner
Legal agreements can assist in providing clarity for cohabiting unmarried couples. If one of you is buying a home, paying a larger deposit, or you both want some peace of mind, there are several types of agreements to legally lay it out, including:
- A Declaration (or “Deed”) of Trust: Sets out specifically how a property shall be owned between two or more people. Most conveyancing firms will offer this service for an additional fee when you purchase a property. A Declaration of Trust is a persuasive document in family law cases where ownership of a property is disputed between unmarried couples.
- A cohabitation or living together agreement: Sets out how finances, property, and living costs will be handled while you live together and if you separate. If you want to protect what you have built, these can clarify expectations and reduce disputes later, because everything is legally set out.
- Pre-nuptial and post-nuptial agreements: The same as a living together agreement in principle, but for couples who are, or are getting, married, or entering a civil partnership.
- Written, legal records about contributions to property and shared expenses.
How do you end a civil partnership?
Ending a civil partnership is done by dissolution, which is similar in structure to divorce. It also follows the no-fault process and involves both a conditional and final order. You can learn more about this process here.
Keep in mind that divorce or dissolution ends the legal relationship, but it does not automatically resolve finances. If you and your spouse or civil partner need financial arrangements to be made legally binding, that is always dealt with separately through a financial order.
If you are going through dissolution of a civil partnership and are a bit overwhelmed with the legal side, our experienced solicitors are here to help. Read more about our work, or call us today at 0117 3751780 to arrange an initial consultation, where we can sit down over a hot drink, talk through it all, and demystify the process.
What should LGBTQ+ couples know about parenting?
Parenthood, conception, and surrogacy are areas of family law where LGBTQ+ couples are most likely to encounter extra complexity, because there are some subtle differences between being a legal parent and having parental responsibility. Simply put:
- Legal parenthood affects the birth or adoption certificate, inheritance, ongoing legal obligations, and sometimes nationality.
- Parental responsibility is about who has the authority to make important decisions for the child in everyday life.
In many families, these terms apply to both parents, as legal mothers automatically have parental responsibility.
Fathers (or a second female or non-binary parent) can gain parental responsibility either by being named on the child’s birth certificate, or by being married to the legal mother at the time of the child’s birth. In other families, especially where donor conception, surrogacy, adoption, or step-parenting is involved, legal parenthood and parental responsibility do not always align, which is where legal issues arise.
It is important to note that the law considers the person carrying the child to term and giving birth as the legal “mother”, regardless of that person’s gender identity. This is the case even if the person carrying and giving birth to the child is doing so with an embryo created using a donor egg.
The term “biological mother” can be confusing, as it may be used colloquially in two different senses:
- Genetic mother = The person whose egg was fertilised to create the embryo.
- Gestational / birth mother = The person who carried and gave birth to the child.
When might legal parenthood be different?
The most common situations where LGBTQ+ couples should double-check legal parenthood are where:
- The child was conceived using a donor
- The child was born through surrogacy
- One partner isn’t named on the birth certificate
- The child was born overseas and later moved
- A step-parent has taken on a parenting role but legal status wasn’t formalised
If any of the above apply, have a look at your paperwork around the matter.
Parental responsibility in everyday life
Parental responsibility is defined separately from legal parentage. It comprises “all the rights, duties, powers, responsibilities and authority” which a parent has in relation to a child and the child’s property.
Parental responsibility therefore is the legal authority to make important decisions about a child’s upbringing. It is common for separated parents to both have it. In practice, it allows you to sign school forms, make medical decisions, deal with passport applications, and agree travel. To find out who has parental responsibility in your case, the government has posted guidance.
If there is a dispute about arrangements after separation, a child arrangements order can set out where a child lives and how time is shared.
How does path to parenthood affect your legal position?
Donor Conception
If fertility treatment is carried out through a licensed clinic and the correct consents are signed, the non-birth parent is normally recognised as a legal parent. If not, legal parenthood may not be the outcome you expect, even where everyone involved agrees on the family set-up.
Surrogacy
As mentioned above, in England and Wales, the person who gives birth is the legal parent, and if they are married or in a civil partnership, their partner may be treated as the other legal parent. But intended parents will need a parental order to become the child’s legal parents. A parental order can confer both legal parenthood and parental responsibility on an intended parent.
Adoption
Adoption changes legal parenthood permanently and is recorded on an adoption certificate. This is normally straightforward but it’s still important to understand what documents will be needed and how parental responsibility will be recorded.
Other financial considerations for separating couples
Long periods of cohabitation
Many couples live together for years before they marry or enter into a civil partnership. If your relationships ends before this, your legal protections aren’t as robust, which is why a cohabitation agreement is such a strong form of protection, especially if there is an income or asset imbalance. If you are considering a cohabitation agreement, you can learn more about how it works here.
Undocumented contributions
If you enter into a marriage or civil partnership, there is a wider legal framework for financial orders on separation, but if not, your options are limited without a cohabitation agreement. If you contribute financially to a property but don’t record your joint intention for the “beneficial ownership” to be shared between yourself and your partner, and document your contributions, you risk not being able to get anything back if the worst happens.
This comes up often with unmarried but cohabiting couples when one is paying most of the mortgage, but the mortgage is in the others’ name, or when one parent is funding fertility treatment or adoption-related costs.
How can I find the right legal support as an LGBTQ+ person?
For most LGBTQ+ couples, the legal process on separation is the same as for heteronormative couples. Nevertheless, it is understandable for members of the LGBTQ+ community to experience worry that they might be judged, misunderstood, or asked questions in a way that feels uncomfortable.
But the right solicitor should make you feel supported and safe to talk openly. Our solicitors are confident dealing with different family set-ups and are well-practised with asking clear and neutral questions without assumptions. You should not have to explain or justify your relationship in order to get advice. When speaking to a solicitor, ask yourself:
- Do I feel listened to, or rushed or misunderstood?
- Are they using inclusive, accurate language, or making assumptions about roles such as “mum and dad” or who the “main parent” is?
- Do they understand the difference between legal parenthood and parental responsibility?
- Are they focused on the law and the practical next steps, or personal topics or opinions?
- Do I feel confident that they will handle sensitive information with discretion?
The best support should feel supportive.
Conclusion
Most family law in England and Wales applies in the same way regardless of sexual orientation or gender identity, but for LGBTQ+ couples, the details concerning relationship status, legal parenthood, parental responsibility, and the paperwork behind how a family was formed can all affect your legal protections and the options available to you.
If you are seeking legal advice, Harbour Family Law can help. Our team has a lot of experience supporting LGBTQ+ clients with cohabitation agreements, relationship breakdown between both unmarried and married or civilly partnered couples, and child arrangements. If you want to talk things through in a calm, non-judgemental space, get in touch today to arrange an initial consultation.