This month marks the 10-year anniversary of the first same-sex marriages in some parts of the UK, performed on 29 March 2014 following the passage of The Marriage (Same Sex Couples) Act 2013.

To mark the first decade of this landmark ruling, we’re looking at the family rights of same-sex couples in England and Wales.

Marriage

Since 29 March 2014, same-sex couples have had the same legal right to marry as opposite-sex couples.

This also means that they have the same rights in relation to divorce and separation.

Certain institutions, however, such as religious organisations are allowed to refuse to marry same-sex couples.

While some may consider this discriminatory, religious institutions are allowed to deny marriage within their churches or other property to any couple if they feel that the couple does not align with their values.

This also applies to opposite-sex couples who do not follow that religion but, for example, live near to a certain church or religious building and so wish to marry there.

Children

The rights of same-sex couples regarding children can also be difficult to navigate.

This is largely due to the fact that the law historically defines legal parenthood by reference to one biological mother and one biological father.

The law, however, is now evolving to recognise a range of family dynamics and better suit the practicalities of many families.

Consider the example of legal parenthood.

Only two people can legally be the parent of a child, although more than one can hold parental responsibility and be responsible for:

  • Housing the child
  • Protecting the child
  • Maintaining the child financially
  • Providing for the child’s education
  • Consenting to medical treatment or legal changes in name

For opposite-sex couples, legal parenthood is automatically assigned to the child’s birth mother and the biological father of the child, if he is either listed on the birth certificate or is married to the child’s mother.

But how does this work for same-sex couples?

If part of the couple is the person who has given birth to the child, then they are automatically the child’s legal mother.

If the birth mother is married to her partner or in a civil partnership, her partner automatically becomes the second legal parent.

This can also be done through a UK-registered artificial insemination clinic, allowing the birth mother to give written consent for her partner to become the other legal parent, regardless of whether or not the partner is the child’s other biological parent.

Alternatively, if the mother’s partner legally adopts her child, they will then become the second legal parent.

For male same-sex couples, the process is a bit more complex.

Many male same-sex couples choose to use a surrogate to have a child. However, the surrogate will legally become the child’s parent and, if she is married, her partner will be the child’s other parent.

This can be remedied after the birth through a Parental Order. It’s important to bear in mind that the surrogate and her spouse must both agree to this and consent can be withdrawn at any time before the Order is put in place.

Equality before the law?

Whilst it’s clear that same-sex couples enjoy broadly the same legal rights as opposite-sex couples, the law still contains certain issues which can present a challenge, particularly when it comes to a child’s legal parents.

The law is constantly evolving to reflect the fact that families are increasingly diverse.

We stay up to date on new developments and we’re here to help if you and your family face discrimination or are confused about your legal rights.

For same-sex couples seeking advice on family law and their rights, please contact our Head of Family and Relationships, Alison Green by calling 0207 240 0521 or emailing alison.green@mackrell.com

Share