Family Law for Same-Sex Couples: Everything You Need to Know

According to the 2021 Census there were then 134,000 people in same-sex marriages in England and Wales, and 67,000 people in same-sex civil partnerships. In addition, of course, there were many same-sex cohabiting couples, who were neither married nor in a civil partnership.

Whilst these figures may represent only a small proportion of all couples, (less than 0.5% of the population aged 16 and over in England and Wales were in same-sex marriages or civil partnerships), they do represent a significant number of people. And for all of them, their legal rights are of course of paramount importance.

In this article we will look at how, over the last twenty years, the law has changed to provide legal recognition to same-sex relationships. We will also look at particular legal issues that can arise for same-sex couples.

The Civil Partnership Act 2004

Prior to December 2005 it was not possible for same-sex couples in England and Wales to enter into a legal relationship. This obviously meant that they could not enjoy the benefits of a legal relationship, including the right to make financial claims should the relationship break down.

All of that changed with the passing of the Civil Partnership Act 2004, which came into effect in December 2005, enabling same-sex couples to enter into a civil partnership.

Legally, a civil partnership is essentially the same as a marriage, in all but name. Civil partners have similar legal benefits and protections to married couples and, apart from the terminology, the procedure on dissolving a civil partnership is similar to the procedure on dissolving a marriage (referred to as ‘dissolution’, rather than ‘divorce’).

Although same-sex couples may now get married (see below), civil partnership still exists, and in 2019 it was extended to opposite-sex couples. Indeed, the latest statistics for civil partnerships, for 2022, show that of the 6,879 civil partnerships formed in England and Wales in that year, 83.7% were by opposite-sex couples, with only 1,119 same-sex civil partnerships being formed in the year. (The highest number of same-sex civil partnership formations was in 2006, with 14,943 formations.)

The Marriage (Same Sex Couples) Act 2013

In 2013 parliament passed the Marriage (Same Sex Couples) Act, which introduced same-sex marriage in England and Wales for the first time, thereby giving same-sex couples the same legal rights as opposite-sex couples.

The first same-sex marriages took place in March 2014, when the Act came into effect.

The Act also enabled couples in a civil partnership to convert the civil partnership into a marriage.

The law and procedure on divorce, and on sorting out financial arrangements on divorce, is exactly the same for same-sex couples as for opposite-sex couples. However, care should be taken if the couple should move abroad, as same-sex marriage is not recognised in all jurisdictions. This can mean that the couple cannot divorce in a country where same-sex marriage is not recognised and, importantly, that financial orders may not be enforceable in that country.

The latest statistics for same-sex marriage, for 2022, indicate some interesting trends. There were a record 7,800 same-sex marriages in that year, representing 3.2% of all marriages. And of all same-sex marriages in 2022, there were more female same-sex couples marrying (62.8%) than male. This was the highest proportion of same-sex marriages between female couples compared with male couples since same-sex marriage was introduced in 2014.

So same-sex legal relationships are now on an equal footing with opposite-sex legal relationships. But that does not however mean that same-sex couples do not face different legal issues compared to opposite-sex couples. They can face very different issues, particular when it comes to children.

Children issues: Legal parenthood

Obviously, many same-sex couples wish to have children together. There are a number of ways that they can do this, each with its own legal implications.

The first possibility is that one of the couple already has a child by a previous relationship. Here, the legal situation is the same as it would be with an opposite-sex couple. The party who is not the parent will have no legal standing in relation to the child, unless granted it by a court, for example by way of adoption (known as a ‘step-parent adoption’) – see below.

If the couple are married or in a civil partnership then the step-parent can also obtain parental responsibility for the child, giving them the right to be involved in important decisions relating to the child, for example relating to the child’s education and health. Parental responsibility can either be obtained by entering into a parental responsibility agreement, agreeing that the step-parent share parental responsibility for the child (any other parent with parental responsibility will also have to agree), or by the step-parent obtaining a parental responsibility order from the court.

Otherwise, the couple may have children by sperm donation or artificial insemination. In either case the birth mother (i.e. the mother who gave birth to the child, who may not necessarily be the biological mother) will automatically be one of the child’s legal parents.

The identity of the other legal parent will depend upon how the child was conceived, and in what circumstances.

If the child was conceived through sperm donation at a UK registered clinic, the second legal parent will be chosen on the paperwork at the clinic, at the time of the sperm donation.

If the child was conceived through sexual intercourse or through artificial insemination (but not at a UK registered clinic), the other legal parent will be the biological father. However, if the birth mother is married or in a civil partnership at the time of conception, and the child was conceived through artificial insemination, the husband, wife or civil partner will be the child’s other legal parent, even if they are not the biological parent.

The last possible way for a same-sex couple to have children that we will mention here is via surrogacy, which we will discuss below.

Children issues: Adoption

We have mentioned step-parent adoption above. Adoption is also a possibility where there are no children. Anyone aged twenty-one or over may apply to adopt a child. In most cases, the child must have had their home with the prospective adopter for a minimum period before the application can be made. The length of the period depends upon who is applying for the adoption order.

For example, if the child was placed with the applicant by an adoption agency then the child must have had their home with the applicant(s) at all times during the period of ten weeks preceding the application, and in the case of a step-parent adoption the child must have had their home with the applicant(s) at all times during the period of six months preceding the application.

Children issues: Surrogacy

A same-sex couple may choose to have a child via surrogacy, whereby a woman (the ‘surrogate’) carries and gives birth to a baby for them. In this case, the surrogate will be the child’s legal parent at birth, even if she is not genetically related to the child. The other legal parent will be the surrogate’s spouse or legal partner or, if she is single, the man who donated the sperm, if he wants to be the father.

The surrogate can, however, nominate a second legal parent, for example the intended mother or non-biological father, provided that the intended second parent consents.

Otherwise, the couple can only become legal parents by applying to the court for a parental order. The application must be made within 6 months of the child’s birth, and the couple, or one of them, must be genetically related to the child – in other words, be the egg or sperm donor. They must also have the child living with them.

Note that the surrogate, and her partner if she is married or in a civil partnership, must give consent to the making of a parental order. The consent must be given no earlier than six weeks after the birth of the child, and it must be given freely and unconditionally, with full understanding of what is involved.

Child arrangements on separation

If a same-sex couple who have children separate then they will need to sort out arrangements as to with whom the children will live and, if with just one parent, what contact the other parent should have with the children

Applications to the court for child arrangements orders work in the same way as for opposite-sex parents, although there can be issues if one party is not the legal parent of the child.

We will now bring this article to a close by briefly discussing two other issues: property rights and domestic abuse.

Property rights

As we have indicated above, same-sex couples who are married or in a civil partnership have the same property rights on relationship breakdown as opposite-sex married and civil partnership couples.

But same-sex cohabiting couples have no such rights, just as their opposite-sex counterparts. They will therefore have to look to the legal ownership of any property, or claim a share in the property, for example through making contributions to the purchase of the property.

Domestic Abuse

The last point to mention, and it is an important one, is that same-sex couples have the same right as any other couples to seek legal protection from domestic abuse, including physical violence and coercive and controlling behaviour.

Accordingly, a victim of domestic abuse in a same-sex couple, whether married or not, may apply to the court for non-molestation and occupation orders.

A non-molestation order is an order prohibiting one party from molesting, threatening or otherwise harassing the other party.

An occupation order is an order that regulates the occupation of the parties’ home, for example by requiring one party to vacate or not to return to the matrimonial home (or, in the case of an unmarried couple, the home in which they both lived).

Conclusion

The above summary sets out the basic law relating to same-sex couples. For most couples it will indeed cover everything they need to know. But a short summary like this cannot possibly cover everything, and nor is it intended as a substitute for tailored legal advice. Accordingly, if you have a same-sex legal issue then you should seek the advice of a specialist.

Walker Family Law have specialist family lawyers who can help you with any same-sex couple family law issue. For further information regarding divorce and separation see here, for further information regarding child arrangements see here, for further information regarding cohabitee property disputes see here, and for further information about domestic abuse, see here.