Civil partnerships and marriages between couples of the same sex give same sex couples the same rights as heterosexual couple’s. As with any family relationship there can be complex issues to consider should your relationship break down.

Same sex relationships and children

Civil partnerships were introduced in 2005 and same sex marriages in 2014, giving same-sex couples the same rights as heterosexual couples. However, there can be child-care issues for unmarried and same-sex couples who separate. Same-sex couples who are not in a civil partnership or married do not automatically have the same parental rights as those who are. The partner who does not give birth will not have automatic parental responsibility and would either need to reach an agreement for parental responsibility to be acquired or an application to the court would need to be made.

Arrangements for children can be complicated further when children may be adopted, the parents have benefitted from surrogacy or sperm donation or one partner may have children from a previous relationship. We can give you advice before you embark on any of these processes.

A child’s legal parent has financial responsibility for the child, can apply to the court for a child arrangement order in relation to the child and also has an impact on inheritance. It is therefore extremely important to obtain legal advice to prevent any future family disputes.

Regardless of who the legal parents of a child are when a person provides for and meets that child’s needs through nurturing, loving, protecting and guiding this is an extremely important role to play and the courts have recognised this and the concept of the “psychological parent” has emerged and is relevant when looking at orders to make in relation to a child.

As experienced family lawyers we can assist in those early days after breakup to discuss your situation and help you reach an agreement focused on meeting your child’s best welfare interests.

Same sex relationships and finances

The Marriage (Same Sex Couples) Act 2013 extended marriage to same sex couples in England and Wales giving same sex couples the same legal rights as heterosexual couples. Initially Civil Partnerships were popular following the Civil Partnership Act 2004, however following the Marriage Act 2013 marriages have become more popular. Civil Partners cannot divorce and must end their partnership by a dissolution. Whilst same sex marriages end their marriage by divorce.

On the breakdown of the marriage it is important to ensure financial matters such as properties, pensions, businesses and savings are dealt with so that each person can move forward knowing their future assets and income can no longer be claimed by their former partner. Same sex couples therefore have the same entitlements as opposite-sex partners would.

Same-sex partners can enter a pre-nuptial agreement before formalising their relationship, whilst not legally binding, a pre-nuptial agreement sets out intentions and can carry great weight in financial proceedings.

Our family law team are experienced in drafting pre-nuptial agreements maximising the chances of the court adopting the agreement within financial proceedings.

Same sex couples that do not enter a civil partnership or do not marry (ie do not enter into a formalised relationship) are treated exactly like the heterosexual couples that decide to live together and not marry, they cannot make any financial claims against their former partner.

It is also crucial for cohabiting couples to make a will, when a person dies without leaving a valid will, their property is shared out according to the rules of intestacy. These state that spouses, civil partners and other close relatives can inherit the property of the deceased person. The rules of intestacy do not provide for couples that simply live together.

What can we do to protect our family

We would always recommend seeking professional legal advice whatever your circumstances and particularly if you are happily living together.  As much as you would look to obtain a financial advisor to help you decide the best options for your finances for pensions; savings; inheritance and so on, a family lawyer can help you ascertain your current rights and responsibilities and how they could change upon marriage/civil partnership and upon any potential relationship breakdown.
You can obtain a cohabitation agreement or post/pre nuptial agreement.

Why do I need a cohabitation or nuptial agreement?

A cohabitation agreement is particularly important in England and Wales if you do not formally marry or enter a civil partnership – this is because there are limited rights available to cohabiting couples. Even if you have lived together for years, have children, run a business together you will not have automatic rights to inherit property or wealth should you separate or should your partner pass away. A cohabitation agreement is therefore essential to prevent one of the partners being left in a vulnerable position financially.

A cohabitation or nuptial agreement lets a couple set out in writing how you wish to manage your day-to-day finances; childcare arrangements; and future wishes so that you agree between you your common ideas and goals. Should your relationship break down, provisions would already be agreed as to how the family should formally separate removing doubt, uncertainty or confusion.

If, for example, you have a joint rental agreement or mortgage, it's up to the both of you to decide what will happen if you separate. If you have been living in your partner’s house, then it will not be as easy and you may be left without a place to live; even in circumstances where you have been contributing to the mortgage or paying your way in other ways (such as staying at home to look after children), unless your name is on the deeds, you may have no right to the property.

Having a cohabitation agreement can help, it can outline the shares each of you will have in the property or whether one of you will remain the sole owner. A cohabitation agreement can also provide for how pensions, possessions and savings should be shared in the event of separation.

A cohabitation agreement can include the following provisions to make separation easier to deal with:

• the ownership of your home - whether you own it jointly together or just one of you owns the property,
• pensions
• your home contents and your personal possessions,
• your bank and building society accounts,
• and your common household expenses including mortgage repayments, rental payments, insurance premiums, council or other local taxes, utility bills, food, decoration and repairs.

Our experienced family lawyers can help you prepare a cohabitation agreement to avoid disputes about who owns what and in what shares and who is responsible for paying various bills. A cohabitation agreement can be made at any time but it is preferable to enter into an agreement before you move in together.

Is a cohabitation or nuptial agreement legally binding?

Although these agreements are not a legally binding contracts, the courts are becoming more willing to accept them and it is a great advantage to have proof of your intentions set out should you both get into a legal dispute.

For any agreement to stand a chance of being upheld by the courts as binding (and there can be no absolute guarantee) the parties must:

1. Each take independent legal advice upon the contents
2. Each tell the other the truth about their financial circumstances
3. One should not exert undue influence over the other
4. There should be no fraud or mistake involved

Parental or child arrangement agreements

You may just wish to have an agreement upon separation that considers the arrangements and financial contributions you will both make towards your children. It is again very easy to assume you both hold the same goals and endeavours for your children, but until the time comes these assumptions are incorrect.

These can be matters such as:

• What school will our children go to
• Who will pay for the school activities
• Who shall be the primary address at the doctors
• Shall our child join a particularly religious faith and celebrate all customs within that faith
• Who shall claim the child benefit for the child and any other associated benefits

We can assist in the drafting of these agreements for you so that you and your co-parent can have an agreed set out principles that will allow you to simply enjoy spending time with your children without worrying about the next milestone you may need to consider.

Our team of family law experts can provide the advice and guidance you need to navigate you through what can be a distressing time but also as insurance policies to set out principles and agreements when your relationship has not broken down.

We offer professional advice and assistance on all legal issues relating to same sex couples. The work we do regularly includes:

• Preparing cohabitation agreements between same sex couples.
• Preparing pre and post civil partnership/marriage agreements (nuptial agreements).
• Advising on legal issues affecting your children.
• Acting in the dissolution of civil partnerships and divorce of a marriage.
• Advising on financial issues arising from the breakdown of same sex relationships.

For more information please contact our specialist law team on 0113 320 5000 or by email on family@winstonsolicitors.co.uk