Expert Answers LGBT+ Legal Queries for LGBT History Month

Associate Solicitor at Crisp & Co, Maryana Tuka, answers family law queries with a focus on the LGBT+ experience, for LGBT History Month in February.

LGBT History Month is an annual month-long celebration of lesbian, gay, bisexual, and transgender history and campaign for rights. It was founded in 1994, and continues to be upheld in order to maintain and improve the welfare and lives of this vibrant and ever-growing community.

In celebration of this occasion, Crisp & Co are hosting a complimentary Q&A webinar on the 23^rd February at 5:30pm, answering a series of legal queries surrounding the LGBT+ community.

The webinar, which will take place over Zoom, will feature Maryana Tuka, Associate Solicitor at Crisp & Co, and will be hosted by Sophia Stancer and Joanna Cunningham at Conscious Solutions.

The session will be free to attend for anyone interested, and our guest lawyer will address questions surrounding LGBT+ divorce, child arrangements, cohabitation rights, and more. There will also be a chance for viewers to ask questions during the session.

Those who are interested can register for the webinar by clicking this link.

To prepare for the sorts of topics that will be answered in the session, Maryana has answered some of the questions that will be covered to give a taster of what you can learn from attending.

What is the difference between a civil partnership and marriage?

The rights and responsibilities are almost identical in a marriage and a civil partnership, not only for the purpose of family law provisions, such as a financial settlement upon separation, but also in relation to inheritance and tax benefits. For example:

• Civil partnerships provide partners with the same rights to assets, including the rights of maintenance as married couples.
• Spouses and civil partners share the same parental responsibilities for children of the family.
• Civil partners benefit from the same rights and tax benefits to intestate distribution as married couples.
• A civil partnership can only be terminated by dissolution or death, similar to the marriage which ends upon divorce or death.

The two notable differences are:

• A marriage is entered by vows while civil partnership is entered into by signing a civil partnership document, but both unions are treated equally by the law.
• A marriage is legally ended by a divorce, whereas a civil partnership is dissolved, although the process is the same.

What is the biggest difference between heterosexual and same-sex divorces?

Previously, whilst a marriage confers the same rights and obligations upon all spouses, it was not possible to obtain a divorce based on the fact of “adultery” for a same-sex couples. Since the much-welcomed introduction of the “No Fault Divorce Law” in April 2022, however, there is no need to provide a reason or apportion blame within the divorce application, therefore this difference fell away with the new law.

The divorce procedure is now identical for same-sex and opposite-sex couples.

What child arrangement options are there for same-sex couples?

It is crucial to first establish the legal status of each parent. This includes determining legal parentage and parental responsibilities.

A child can only have two legal parents:

• The birth mother will automatically be one of the child’s legal parents and will also have automatic Parental Responsibility. The identity of the other parent, and whether they have parental responsibilities, will depend on how the child was conceived and the marital status of the couple. If the father or second parent is unclear as to their legal parenthood and Parental Responsibility status, they are encouraged to seek advice from a specialist lawyer on their individual circumstances.
• The only way that you can change a child’s legal parents is by adopting the child, or if there has been a surrogacy arrangement through a parental order. If a child is adopted, then the adoptive parents will become the legal parents and the birth/biological parents will no longer be legal parents or have parental responsibility.

Provided both parent share Parental Responsibility, the options for child arrangements after a same-sex divorce or dissolution are the same as for heterosexual couple upon separation. These include for example:

• Reaching an agreement together through a private Parenting Plan.
• Negotiating a Child Arrangements Agreement in mediation or with the help of solicitors.
• Making an application to the Court for a Child Arrangements Order.

Should a compromise not be reached between the parents as to the child arrangements or any major decision in the child(ren)’s lives, an application to Court would need to be made to determine the issue under the Children Act 1989. This, however, should be the last resort and all other ‘voluntary’ means of resolution should be attempted in the first instance, including family counselling/therapy, mediation, and negotiations via solicitor correspondence.

The child(ren)’s best interests and welfare will be paramount in any discussions or Court proceedings. 

In a same-sex divorce, if one parent is biologically related to the child, do they have more precedence over what happens?

If an agreement cannot be reached about child arrangements, it will be necessary to consider who has Parental Responsibility (PR) for the child. Parental Responsibility is the legal rights and obligations to make certain decision about the child’s upbringing, such as which school they attend and what medical treatment they are able to receive.

• The birth mother will automatically have PR. They can only be removed with an Adoption Order or a Parental Order (surrogacy).
• The spouse or civil partner of the mother can acquire PR for a child conceived through artificial insemination if they were married or in a civil partnership at the time.
• One can also acquire PR by either entering into a Parental Responsibility Agreement (PR Agreement) or applying to the court of a Parental Responsibility Order (PR Order) with the consent of the birth mother.

If both parents share Parental Responsibility, they will have the same rights and decision-making responsibilities for the child. A biological relation to one parent, in such a case, will not give them precedence over what happens to the child upon separation.

Can LGBT couples adopt in the UK? What are the differences in comparison to heterosexual couples?

Yes. In the latest statistics we have available from 2020, 1 in 6 adoptions in England were to same-sex couples.

The Adoption and Children Act 2002 (which came into force in 2005) gave LGBTQ+ adopters the same legal rights as heterosexual or cisgender parents. Since then, the number of children placed with loving same-sex adopters has grown year on year.

The differences we experience with LGBTQ+ adopters are less legal and more practical in terms of their approaches to adoption. For example, despite the changes in the law, some people are still unaware that a single person, whatever their orientation or gender identity, can successfully adopt.

There is also research to suggest that, sadly, many members of the LGBTQ+ community think their sexual identity may be incompatible with parenthood, even if they have always wanted to be a parent. There are, however, ample studies which show that same-sex families are thriving, and the parent-child relationship is just as strong and loving in same-sex couples as in heterosexual ones.

What are the rules surrounding surrogacy for a same-sex couple in the UK?

Surrogacy is the process whereby a woman (the surrogate) becomes pregnant with a child who is genetically related to at least one of the ‘intended parents’. Following the birth, the child will be living with the intended parents.

The legal framework for Surrogacy is contained in the Human Fertilisation and Embryology Act (HFEA) 2008, which applies to same-sex and heterosexual couples in the same way.

In this jurisdiction, the woman who carries the child, regardless of whether she is genetically related to the child, will be recognised as the legal mother. The Surrogate will therefore always be the legal mother of a child at birth, and will remain so until the Court awards a Parental Order.

Intended Parents will acquire legal status by obtaining a Parental Order. This is the Order that must be made for children born through surrogacy to confer legal parenthood status on the Intended Parents, and extinguish the Surrogate’s parental rights.

The criteria for making a parental order is set out in s.54 HFEA 2008.

What happens when a person changes gender during an originally heterosexual marriage?

If a person wants to change their gender after marriage, be they in a same-sex or opposite-sex marriage, their legal rights as a spouse are not affected. If, however, the relationship subsequently breaks down irretrievably, it may be possible to end the marriage by an annulment, and not just a divorce.

The Gender Recognition Act 2022 amended the basis upon which a marriage could be voidable to add the ground of an Interim Gender Recognition Certificate being issued to either party, subsequent to the date of the marriage. A ‘voidable’ marriage is one that will be treated as having existed up to the time when the Decree of Nullity is made by the Court. The application for Nullity in such cases, however, must be pursued within six months from the date of the issue of the Interim Gender Recognition Certificate.

In the circumstances, where a voidable marriage is annulled, it would still be possible for either party to pursue a financial settlement by way of a Financial Remedy Order, and a Child Arrangements Order regarding the children of the family, the same way it would have been done in the event on a Divorce.

What cohabitation rights do same-sex couples have?

If the parties cohabit rather than get married or entering into a civil partnership, be they in a same-sex or opposite-sex relationship, they will have:

• No automatic rights to their partner’s property in the event of their death.
• No automatic entitlement to inherit their estate, even if they have children.
• No tax reliefs or exemptions that spouses and civil partners enjoy, including pensions.

As the parties were never married or in a civil partnership, the law governing a financial dispute following a separation will be the Trust of Land & Appointment of Trustees Act 1996, commonly known as TOLATA.

The ‘starting point’ in determining the parties’ respective assets would be the current legal ownership.  The burden of proof in all cases rests with the party who is not the legal owner. Where property is purchased in the sole name of one of the cohabitants and there is no express declaration of trust, a Claimant must necessarily adduce convincing evidence to establish that they have some beneficial interest in the property.

It is advised to obtain a Cohabitation Agreement which can provide more security with regards to property, assets, pensions and debts.

LGBT+ Legal Webinar Information

Crisp & Co’s webinar, on 23^rd February at 5.30pm, will go into more detail answering these questions, and more. Alongside any queries you may have as a viewer of the webinar, some of the other questions that will be covered include questions surrounding surrogacy, fertility and more.

Maryana Tuka says, “We’re really excited to host this free webinar to show support for the LGBT+ community. Divorce and separation can be a really difficult time in a person’s life, and same sex couples may face different challenges compared to heterosexual couples.

“We’re going to be covering a lot of this in the webinar, from finances and childcare, to living arrangements. We’ve been working with LGBT+ families for years, so many of the questions will highlight common issues we’ve helped couples face.”

Sign up for the webinar, here, and feel free to share on social media, tagging Crisp & Co:

• Instagram: crispcosolicitors
• LinkedIn: Crisp & Co
• Twitter: @Crisp_co

Please note, the session cannot of course go into detail regarding specific cases due to time constraints and confidentiality issues. However, if individuals would like to book a free consultation following the Q&A with a Crisp & Co solicitor, this can be arranged by contacting us on 0203 857 9885.

Crisp & Co has been working with LGBT+ families for many years, helping them to deal with the full range of issues affecting same-sex couples. This gives them a high level of expertise in the area of LGBT+ family law, offering peace of mind that you and your family are in safe hands.

If you require legal assistance and guidance surrounding any family law enquiries, including divorce, separation, surrogacy, adoption, IVF, or cohabitation, call 0203 857 9885 or make an enquiry for more information.