1. What potential legal problems could unmarried parents face?

Unmarried fathers could find themselves without parental responsibility (‘PR’) for their child(ren), unless the father was registered on the children’s birth certificates in which case they would obtain parental responsibility automatically. Parental responsibility allows a person to have a say in important decisions about their child, such as educational or medical decisions. However, not having parental responsibility does not prevent an unmarried father from applying to court for an order regarding the child, such as living arrangements, specific issues order or prohibited steps orders. It is also possible for the father to apply for parental responsibility and obtain it via court order.

2. Should unmarried parents have a written agreement regarding the care of a child?

In the absence of any court order, parents are free to agree arrangements regarding the care of their children however they like. It is only if a dispute arises that parents, whether married or unmarried, are likely to seek court intervention by way of a defined order setting out the child’s living arrangements. There is no need for parents to have a written agreement about the care of their children, although there is a lot of information available online in terms of shared calendars that assist the arrangements being clear or apps like ‘Our Family Wizard’ can also help.

3. What is the difference in responsibility of married parents and unmarried parents?

The responsibility that parents have for their children is unaffected by marriage. This stems from parental responsibility as mentioned above. Mothers automatically have parental responsibility for their children, whereas fathers can gain PR by being married to the mother when the child is born, or alternatively being registered as the child’s father on their birth certificate. (There are also a few other routes to gain PR via various Court procedures). Where there is a same sex female couple and one of the party gives birth to the child, the birth mother would automatically gain PR. Similarly, if both parties were married, then the female spouse of the mother can also be named on the child’s birth certificate and gain PR. Unmarried partners in a same sex female relationship would struggle to gain PR via the birth certificate. They would need to explore the option of applying to court and would need consent of all those who do have PR. Where there is a same sex male couple, if the parties are married or in a civil partnership and using surrogacy, then it would be beneficial for them to apply for a Parental Order under the ‘Human Fertilization and Embryology Act 1990’. If successful, the court can therefore remove PR from the surrogate and give PR to the applicant couple, providing this is what is in the child’s best interests. Same sex male couples who are married or in a civil partnership may also explore adoption, and therefore require an adoption order which would provide them with PR. If one of the male couple was the biological father he could be named on the birth certificate and obtain PR.

4. Should a child born to unmarried parents be given the father’s or mother’s surname?

It is entirely up to a child’s parents to agree the child’s name. There are no set rules regarding whether a child should be given a father’s or mother’s surname, or indeed a combination of the two. Each family is different and has different preferences, neither are right nor wrong. If a couple are married at the time of the child’s birth, then either party can register their birth. If parents are unmarried, then parents can register a child’s birth together. Alternatively, one parent can register a child’s birth if either they have a declaration of parentage form signed by the other parent. An unmarried mother can register a child’s birth alone, and not include the father’s details on the birth certificate. There is the possibility it could be added at a later date, however.

5. Is there any impact for a child born to unmarried parents on the claim of any family inheritance?

There is no bar to children of unmarried parents being a beneficiary to an estate. These claims can be complicated and so further advice should be sought if this situation arises.

If you want to know more about your rights, please contact our Family Team.

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