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Same-sex marriage has been legal in Britain since 2013 but are you fully aware of your rights should your relationship end in divorce?Gemma Thew is a partner at Stowe Family Law, the UK’s largest family law firm.
Although LGBTQ+ couples are thought to be happier in their relationships than their heterosexual counterparts, according to various research over the years, including a study by the Open University, divorce within the community is creeping up.
In 2021, there were 1,571 same-sex divorces, an increase of 36% from the year before, when 42,000 gay couples married in England and Wales. The majority – 67% – were female couples.
Divorce is often a complex and painful process. This may be especially true for the LGBTQ+ community who, being presented with unique challenges, including discrimination and social stigma, require reliable information, especially in relation to finances, children and pets.
Money can be one of the biggest bones of contention.
Sound legal advice that helps you understand your financial position and clarify your rights is crucial when going through the divorce process. It is highly recommended that you obtain a financial order as part of your divorce. This spells out how parties will split their sole and joint assets, including properties, pensions, savings, investments, and liabilities. It can also confirm the position on maintenance. The order brings all financial claims to a conclusion.
Cohabitation is the fastest-growing UK family type. A difficulty divorcing LGBTQ+ couples can face is trying to figure out who has a claim over which asset, given that they might have co-habited for significantly longer before they got married, particularly as gay marriage was only legalised in 2013. During those years, money and assets may well have accrued and these can be considered in divorce proceedings.
One key thing to bear in mind: ‘common law marriage’ is an urban myth.
If you are co-habiting but not married nor in a civil partnership, you do not enjoy the same legal rights as married couples. A way round this is to put a cohabitation agreement in place. This provides clarity on the ownership of things such as property, can address financial provision and any other arrangements for children. These sorts of agreements can be made at any stage in the relationship and can transfer into a prenup should you later decide to marry.
Child arrangements can be a particularly thorny issue for LGBTQ+ couples where usually only one parent is biologically related to the child. Babies born by surrogate automatically become the child of the surrogate and if married, her partner also becomes the baby’s parent. This means the intended parents must seek a parental order to transfer the parental rights over to themselves.
Parental responsibility may also be accorded in instances in which your name is added to the baby’s birth certificate. Knowing this information is crucial because without parental responsibility, you have no automatic say in any important decisions regarding your child.
The court, when considering any application made regarding a child, will always prioritise that child’s best interests above all else. This means that they consider the child’s wishes and feelings; their age, sex and background; their physical, emotional and education needs; any risk of suffering; and the capability of each parent. The presumption is that the court will not intervene, other than in the best interests of the child.
Finally, a 'paws' for thought. Many couples, particularly LGBTQ+ couples, opt to have pets over children. Whether a couple cannot have children or decides against doing so, cats and dogs often make a satisfactory substitute. The pet may be viewed as the couple’s child and be loved just as much, but the law states otherwise. Pets are mere ‘chattels’ – i.e. objects and not beings.
In 2021, 27% of divorces involved disputes over the custody of the pet/s and that number is rising. For this reason, couples are now drawing up ‘petnups’, the pet equivalent of a prenup. These petnups, while not legally binding, nonetheless spell out who gets the pet in the event of relationship breakdown or divorce and can help prevent, or resolve, difficult disputes.
All in all, these examples show just how more important it is to ensure you are aware of what to expect should there be a breakdown in your relationship. With the necessary information, you can mitigate the upsetting effects of divorce/separation with its disputes over money, children – and furry friends.
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