Gay and lesbian parenting – are three parents better than two?
by Gemma Hope, April 20th, 2012
Our legal system continues to struggle to evolve a principled approach to cases involving same sex parents as a recent case[1] in the Court of Appeal has shown.
This case related to a boy who is now aged 2. The boy lived with his biological mother and her long term lesbian partner.
When the couple wanted to have a child together they were pleased that a long term gay friend offered to father the child using artificial insemination.
Due to the biological mother’s family’s religious beliefs they had difficulties with her same sex relationship and therefore to make the arrival of the child easier for her family to accept she married the biological father. The marriage was purely to gain the biological mother’s family’s blessing, she and the biological father never intended to live together and it was agreed that the child would live in the household of the biological mother and her partner. It was agreed the biological mother and her partner would be the child’s main carers, but that the biological father would be acknowledged as such and still have a relationship with the child. They tried to agree the extent of that relationship. However after the child was born the disagreements as to the biological father’s role in the child’s life escalated.
The biological father wanted overnight contact at his home and holiday contact. The biological mother and her partner however did not want this and felt the biological father was intruding into their family unit.
The biological father applied to court for a defined contact order and the biological mother and her partner applied for joint residence and a specific issue order to limit the biological father’s right to exercise his parental responsibility.
The court held that the child should just have enough contact with the biological father to know who his father is but not so much as to undermine what was described as the nuclear family and went as far as refusing the biological father any staying contact for the foreseeable future.
The biological father appealed. The Court of Appeal felt that the Judge’s refusal for overnight contact for the foreseeable future was plainly wrong. The Court of Appeal made it clear that all cases concerning children’s welfare must be determined using the long standing overriding principle that the children’s welfare is paramount. The Court made it clear that it is the welfare of the child throughout its life that must dominate the decisions about the future involvement of the adults around it.
So what can we learn from this case?
- The role of the biological father will depend on what is in the child’s best interests at each stage of the child’s childhood and adolescence.
- Having three parents is not necessarily disadvantageous to a child. The courts will now be slow to accept two parents can bring up a child better than three.
- The court will be cautious before attaching great weight to the adults’ plans and agreements for a child made before the child was born.
- The concept of ‘principal’ and ‘secondary’ parent established in previous cases has the danger of demeaning the father who was significant in the child’s life even though in care terms he may have a secondary role.
- Contact is for a child’s benefit and its level should be decided accordingly and not to reflect the role that has been agreed by the adults or discerned from conduct.
- The label ‘sperm donor’ is not appropriate in cases where the father is known, as opposed to anonymous, as it is capable of conveying the impression that the father is giving his child away and that was misleading.
Lesbian and gay couples really do need to think very carefully and consider all the legal implications before entering into any kind of agreement to parent children together. A lesbian couple can not simply use a known male friend to help father a child without significant long term implications with regards to the biological father’s role in the child’s life. A biological father may well say he is happy to simply take a back seat and allow the lesbian couple to raise the child without his involvement but then take a very different view once the child is born, which can have a significant impact on the family unit that was envisaged at the time of conception.
This case also highlights how marriage is still regarded by some as the only acceptable arrangement in which a child should be born. What are your views on same sex couples being able to get married? Have your say by taking part in this short survey
By Gemma Hope
[1] A v B v C [2012] EWCA Civ 285
Landmark case enshrines civil partnership as ‘identical’ to marriage if the relationship breaks down
by Gemma Hope, March 30th, 2012
Civil partners have “identical” rights to husbands and wives, three senior judges established yesterday as they settled the first multi-million pound civil partnership split to come before the courts.
The case acknowledges that the same principles should apply as to when a husband and wife divorce. The court have stated that the fact that the claim arises from the dissolution of a Civil Partnership rather than a marriage is of little importance.
Fundamentally, the case highlights that an outcome for civil partners can be just as uncertain and inconsistent as it can be for divorcing spouses. To try and minimise uncertainty, it is advisable for civil partners, as it is for spouses with pre-nuptial agreements, to consider a pre-registration agreement to try to determine how the assets should be divided if the relationship ends.
The Law Commission is currently reviewing legislation on how married couples and civil partners can claim financial support from one another after a divorce or dissolution. It is hoped that the outcome of this review will result in more certainty and clarity for marriage couples or civil partners whose relationships have come to an end. However there is no prospect of change for the foreseeable future so the best option in the meantime is for couples to seek advice about entering into a pre-nuptial or pre-registration agreement before getting married or entering into a civil partnership.
This case is particularly interesting in light of the government’s current consultation into same sex marriage. If civil partners rights are the same as married couples rights when the relationship ends it raises questions as to why there needs to be two separate systems for partnership recognition. Have your say on gay marriage by taking part in our survey:
By Gemma Hope
Legal myths behind marriage & civil partnership
by Lisa Burton-Durham, March 21st, 2012
As gay marriage continues to make headlines the debate is still marred by misunderstandings about the legal differences between marriage and civil partnership.
Marriage and civil partnership exist as parallel legal systems
Contrary to some reports, they offer almost exactly the same legal rights.
Back in 2004 civil partnership legislation tackled the inequalities of legal rights relating to personal relationships which have always existed on the grounds of sexual orientation. For the first time gay couples had a way of achieving the same rights on everything from inheritance to property ownership.
Civil partners and married couples are entitled to the same social security and pension benefits. Both are also able to obtain parental responsibility for a partner’s child, receive maintenance, tenancy rights and next of kin rights.
However the legislation achieved this legal equality without embracing same sex relationships at a cultural level. By creating an entirely new system, especially one with the cold term “civil partnership”, a lesser status was conferred on LGBT relationships.
The only real legal distinctions relate to relationship break-down
Married couples have to apply for divorce, whereas civil partners dissolve their partnership. In practice this makes little difference to the process couples go through if they break up.
Adultery is not recognised as a reason to dissolve a civil partnership, due to the fact that in legal terms adultery is defined as sexual intercourse between a man and a woman outside the marriage.
With these two exceptions civil partnership confers the same legal rights as marriage.
So why the big debate?
Campaigners for gay marriage say that there should not be separate systems based on sexual oriantation. They argue opening marriage up to same sex couples would go a long way to recognising the validity of these relationships. It’s about putting people of all sexual orientations on an equal footing in public life.
Yet many faith leaders believe gay marriage would significantly marginalise traditional values in society. Same sex marriage was not mentioned in either the Conservative, or the Liberal Democrat manifesto so the Government’s mandate for making this change is also questionable.
The religious aspect to marriage
During a civil partnership ceremony there is no reference to religion. This is the same as civil marriages, where couples are not allowed to mention religion in their vows; even music with religious references is banned.
Yet of course straight couples have the choice between a religious or civil marriage whereas the formation of a civil partnership is entirely a civil process. Some faith groups, such as Unitarians wish to conduct religious ceremonies for gay couples and 100 Anglican ministers recently wrote a joint letter to the church asking permission to conduct civil partnership ceremonies at their own discretion.
The Home Office’s consultation paper proposes:
- To allow same sex couples to marry in a registry office or other civil ceremony
- To retain civil partnerships for same-sex couples and allow couples already in a civil partnership to convert it into a marriage
- To maintain the legal ban on same-sex couples marrying in a religious service
What do you think?
The Family Department at Mayo Wynne Baxter is interested in how people feel about these issues. You can express your views through this short survey. The results will be sent to MPs and the press.
Gay marriage criticised again
by Lisa Burton-Durham, March 5th, 2012
The Government’s planned consultation on gay marriage has again been criticised. This time by the most senior Roman Catholic cleric in Britain.
Cardinal Keith O’Brien, the leader of the Catholic Church in Scotland, said the plans were a “grotesque subversion of a universally accepted human right”.
That’s quite some statement to make and one which will no doubt have same sex couples feeling discriminated against once again.
Same sex couples have been able to publicly declare their commitment to one another since the Civil Partnerships Act of 2004, but marriage itself is only available to a man and a woman The Government is planning a public consultation later this month on whether this law should change.
As you can imagine there has been a huge response from senior politicians and clergy on the issue and opinions couldn’t be further apart.
Supporters of same sex marriage take the view that individual people should have a choice about their personal relationships, their love for each other and their wanting to be in a partnership or marriage.
Many church leaders believe gay marriage would represent a significant step in marginalising traditional religious values in society. They believe the government should not be able to have the authority to redefine marriage.
What do you think?
The Family Department at Mayo Wynne Baxter is interested in how people feel about the possibility of opening marriage up to same sex couples. You can express your views through this short Gay Marriage Survey. We are intending to send the results to MPs and the press.
Civil partnership & marriage – do labels matter?
by Gemma Hope, February 14th, 2012
Same sex couples have been able to publicly declare their commitment to one another since the Civil Partnerships Act of 2004, but marriage itself is only available to a man and a woman. The Government is planning a public consultation this March on whether this law should change.
Legally civil partnerships and marriage are more or less the same. So do these labels matter? And do we need this two tier system?
Whilst the introduction of civil partnerships was an important advance I find the existence of separate laws depending on sexual orientation difficult to justify.
Opposition has traditionally come from faith groups, but the origins of marriage are not associated with religion. Historically it was a business agreement made between families to consolidate assets. It wasn’t until 1753 that marriage was required to take place in a state-recognised religious setting and just 80 years later registrars were authorised to reinstate civil ceremonies.
Today marriage means different things to different people; with the common ground being lifelong, loving commitment. Given that the law already recognises the difference between civil and religious marriage preventing same sex partners from entering into civil marriage for religious reasons seems inconsistent.
Since December 2011 the law has allowed civil partnership ceremonies to be held in religious buildings, but it does not force anyone to host them. While few church authorities have taken up the offer not every minister is against the idea. Last week 100 Anglican clerics asked the Church of England to reverse its ban on civil partnership ceremonies. They stopped short of indicating their support for same sex marriage in church.
The importance of family values is often cited by politicians and some critics point to a danger of devaluing heterosexual marriage and spurring a breakdown of the family unit. This is unconvincing. Surely allowing same sex couples to make a public commitment to a lifelong partnership would strengthen cultural support for family life. This has been David Cameron’s argument in bringing the issue back into public debate, although some of his MPs disagree.
Then there are suggestions that marriage is about having children. There are many options, such as adoption or IVF, which enable same sex couples to have children. However, whether straight or gay not all couples want to have children. Many heterosexual couples do not have children, through choice or otherwise, yet they are free to marry.
If loving relationships are important to society I believe we need a legal system that supports and recognises those relationships.
My colleagues and I in the family law department are interested in how people feel about the possibility of opening marriage up to same sex couples. You can express your views through a short survey. The results will be sent to MPs and the press.
By Gemma Hope
2011: a good year for gay rights
by Gemma Hope, December 15th, 2011
Hidden amongst the mountain of news that was 2011 the USA witnessed serious progress on gay rights. The year saw:
- The repeal of a law prohibiting gay men and women from serving openly in the military.
- New Yorkbecoming the sixth, and biggest, state to allow same-sex couples to marry.
- A series of national polls showed support for same-sex unions now outweighs opposition for the first time since polling on the issue began in the 1980s.
- Reports that Barack Obama is in favour of repealing the Defence of Marriage Act that prevents federal recognition of gay marriages.
Things have been shifting this side of the pond too. In England this month legislation has been introduced to lift the blanket ban on civil partnership ceremonies in religious buildings. The definition of marriage as a partnership between one man and one woman may also be shaken up after a public consultation on same-sex marriage in the spring.
A number of questions remain. If marriage becomes open to same sex couples will those with civil partnerships automatically become ‘married’ or will they have to go through another legal process to be recognised as such? Then there are issues for same-sex parents – such as the complications that come from determining who has legal parenthood and parental responsibility for children.
Legal rights are catching up, but most of our gay clients still face more complicated issues than their heterosexual peers. Our Family Team is researching some of the legal issues experienced by gay, bisexual and transgender people. Please get in touch if you’d like to share your thoughts, or need advice on any legal issues around same-sex parenting, civil partnerships, cohabitation or separation.
By Gemma Hope
Does our legal system segregate couples according to their sexual orientation?
by Gemma Hope, September 20th, 2011
Ministers are to launch a consultation next spring on how to open up civil marriage to same-sex couples in England. The Consultation will only cover civil marriage for same-sex couples, not religious weddings – nor heterosexual civil partnerships.
At the moment heterosexual couples can get married, but not enter into a civil partnership. Same sex couples cannot get married, but can enter into a civil partnership. Legally civil partnerships and marriage are more or less the same. The issue in question is why we need two separate systems. In a democracy surely couples should be equal before the law rather than segregated?
The lesbian, gay, bisexual and transgender human rights organisation OutRage! have organised the Equal Love Campaign (http://equallove.org.uk/) in order to challenge the law as it stands. Campaigners say that denying gay and heterosexual couples the same treatment contravenes the Human Rights Act.
Whilst the introduction of civil partnerships was an important advance in the law it is questionable whether a two tier system of partnership recognition is what we need in our society, having separate laws depending on sexual orientation does not seem necessary or indeed justified.
At present civil partnerships cannot take place in a Church, for religious same sex couples this must make them feel very excluded. The Lesbian and Gay Christian Movement (http://www.lgcm.org.uk/2010/11/equal-love-campaign/) support a change in the law and take the view that the choice of how to celebrate a lifelong commitment to someone should belong to the couple and not the state. The introduction of same sex couples being able to get married is likely to face opposition from the Church however the origins of marriage are not associated with religion, historically it was more of a business agreement made between families to consolidate their assets by law.
Many regard a civil partnership not having the same feel as a marriage ceremony. A civil partnership is sealed by the signing of the register and the wording and procedure are more bureaucratic rather than romantic.
We are always being told about the importance of the family and family values to ensure stable communities. Some opposed to same sex couples getting married suggest that same sex couples getting married will result in the breakdown of the family unit but are such views are justified? Civil partners can have children, for example through options such as adoption or IVF, and it must not be forgotten many heterosexual couples may not want to have children or be infertile, yet they are not prevented from marrying. As long as a child has good parenting and grows up in a loving and caring environment does it matter whether their parents are civil partners or married?
Having two separate systems to formalise a relationship is not just an issue for same sex couples. Many heterosexual couples want to make a life long commitment to each other but don’t want to be involved in the marriage system due to its patriarchal foundations. One must not forget that up until the late 19th century marriage was in effect the handing over of a woman to a man, the couple then became legally one and the woman would lose her legal identity. Understandably therefore many heterosexual couples do not want to marry because of the historic baggage associated with it. However, as the law stands at present unless a heterosexual couple get married they hardly have any rights as a couple with little financial or legal support in place for them, and if their relationship subsequently breaks down there is no coherent scheme of remedies to relieve financial hardship unlike there is with married couples or civil partners.
Many same sex couples may well not want to get married and many heterosexual couples may be happy to. However, the decision should be left up to the couple; it is a personal decision and not one that should be dependent upon the sexual orientation of the couple.
In order to ensure a stable society it is important that loving relationships can develop and that a system is in place to support, recognise and nurture relationships where people, as a couple and as individuals within a couple, are recognised as equal not just in the eyes of the law but also by society.
Here at Mayo Wynne Baxter we recognise that each relationship has its own unique set of circumstances, the law at the moment can be complicated and confusing. Our Team of experts are accredited by The Law Society and members of Resolution. Whether you need advice on marriage, civil partnerships, divorce, dissolution, cohabitation or separation our experts can help provide advice and assistance tailored to your circumstances.
By Gemma Hope
UK Civil Partnerships now fully recognised in France, but there are still traps!
by Edward Coxall, March 25th, 2011
French civil partnerships (pacte civil de solidarité or PACS) have benefitted from the same inheritance tax and gift tax rules applicable to married couples since 22 August 2007.
However, although UK marriages have always been recognised in France for the purposes of these rules, UK civil partnerships have not. This meant that a partner in a UK civil partnership would be liable to pay tax at 60% in France on any French property he received from his partner by way of lifetime gift or Will (after a very small tax free allowance of €1,570). Compare this to the position of married couples and those in a PACS who, since 2007, have been totally exonerated from inheritance tax on death and have an allowance of €79,533 on lifetime gifts.
Following a change in French law in 2009 civil partnerships registered in countries outside France are now given recognition in France providing they do not contravene French law. By way of example, a “cohabitation agreement” in Belgium is available to mixed and same-sex couples as well as those co-habiting in a platonic relationship (including members of the same family). Thus a Belgian “co-habitation agreement” between members of the same family would not be recognised in France as French law only permits civil partnerships between couples who are not related.
In 2010 the French tax authorities published further clarification on these changes and specifically confirmed that UK civil partnerships were recognised as equivalent to PACS and further, those partners in a civil partnership would benefit from the same inheritance and gift tax rules that apply to married couples and PACS couples. Evidence of the existence of a UK civil partnership would need to be provided to the French tax authorities at the relevant time and probably the simplest way to do this would be to provide a legal certificate of custom.
So far so good! It is important to remember however that in France non-married couples, whether in a PACS or a UK civil partnership, do not have the same rights as married couples in each others estates on death. Under French inheritance law (which will apply to French property owned by a couple even if the couple are not actually French residents) married couples are automatically entitled to a share in their spouse’s estate. A partner in a PACS or a UK civil partnership has no such rights under French law. However it is often possible, depending on personal circumstances, to enhance the rights on death of a non-married partner. This could be by Will or by creating the so-called right of survivorship over jointly owned property in France whereby the survivor inherits the deceased joint owner’s share. It is important to consider these matters before buying however as the survivorship clause can only be applied in the purchase document for the property: it is not available after the property has been purchased. Equally, before making a Will it is important to consider its implications with regard to French law as French succession law will apply to French owned property regardless of where the owner resides and potentially to all assets if the owner resides in France.