Family Law Solicitor
Myerson Solicitors
The end of a relationship is never easy, but for LGBTQ+ couples, navigating the legal and emotional aspects of separation can come with distinct challenges. For LGBTQ+ families knowing your rights is vital – particularly if your family has been formed through surrogacy, adoption or other routes that can carry additional legal considerations.
In this article, we explore how separation works for same-sex and LGBTQ+ couples, how financial matters are resolved, and what options are available when children are involved.
Ending the relationship: divorce and civil partnership dissolution
LGBTQ+ couples have had the legal right to marry since 2013 in England and Wales, and civil partnerships continue to be recognised. Both marriage and civil partnerships can be formally ended through the family court – divorce or dissolution, respectively – and the process is now based on a no-fault system. This means that neither party needs to prove wrongdoing for the legal process to begin.
Whether it is a divorce or a dissolution the procedure is the same: an initial application, followed by a conditional order, and finally, a final order to formally end the marriage or civil partnership.
But while the legal framework is the same for all couples, LGBTQ+ individuals may face different questions when it comes to resolving finances and parenting arrangements, particularly when their relationship pre-dated legal recognition.
Financial matters: reaching a fair outcome
Financial settlements can be one of the most emotive and difficult topics to brooch following separation. Like opposite-sex couples, same-sex spouses and civil partners are entitled to a full range of financial remedies. These can include:
- Lump sum payments
- Spousal maintenance
- Property transfers or sales
- Pension orders
- A clean break, ending future financial ties
The court will assess the financial resources, needs and contributions of each party amongst other factors, and aims to reach an outcome that is fair and meets the needs of the parties and any children involved.
However, there can be added complexity when considering assets that were acquired before marriage – especially for couples who lived together for many years. Determining whether these assets are “marital” or “non-marital” can become a key issue, particularly where significant property, pensions or savings are involved. Cohabitation alone does not automatically give rise to legal rights, though it is typically taken into account that any period of seamless cohabitation prior to the date of the marriage or civil partnership when determining the length of the marriage. Accordingly, timelines and clear evidence of cohabitation is often required. It should be noted of course that many LGBTQ+ couples were unable to enter into marriage or civil partnership previously owing to the lack of provision within the law for them. Accordingly, these arguments can be important as evidence of the enduring relationship between the parties.
Children: supporting parenthood in all its forms
For LGBTQ+ families, parenting often involves a range of routes – from adoption and surrogacy to donor conception. These arrangements can create additional legal considerations during a separation.
The starting point is to establish parental responsibility: the legal authority to make decisions about a child’s health, education, and welfare. Biological and adoptive parents usually have parental responsibility automatically, but others (such as non-birth parents in a surrogacy arrangement) may need to apply for parental orders, declarations of parentage or child arrangements orders.
If both parents are legally recognised, they may choose to agree parenting arrangements voluntarily. Options include:
- Mediation: This process can help couples reach agreement on how children will be cared for, where they will live, and how contact will work. Mediation is not legally binding but can lead to a more amicable, cost-effective solution.
- Collaborative law: This process enables separating couples to work together with trained professionals to resolve disputes without going to court. Everyone agrees to work together as a team to resolve disputes without going to court.
- Negotiation: working with solicitors, with the benefit of independent legal advice, to work out what would be best for their family, avoiding costly and potentially acrimonious court proceedings.
If agreement cannot be reached, the family court can make a Child Arrangement Order which is legally binding and sets out the child’s living and contact arrangements. The court’s priority is always the child’s welfare.
Planning ahead for a smoother separation
While the legal system provides equality on paper, LGBTQ+ families may still encounter unique issues when relationships end. The reality is that the law in this area is continues to evolve but has not caught up to the social realities of life as an LGBTQ+ person and the unique family dynamics which are increasingly commonplace. The key to navigating these challenges is early advice and a tailored, bespoke approach that reflects the structure of your family, the history of your relationship, and the complexities involved.
If you are an LGBTQ+ individual facing the challenges associated with separation and need assistance, the team at Myerson Solicitors are here to support you with clarity, empathy and practical expertise.
Read more articles by Myerson Solicitors.
About Joe Ferguson
Joe Ferguson is a solicitor in the Family Law team at Myerson Solicitors. He specialises in divorce, financial remedy proceedings, and complex children matters, with particular expertise in supporting LGBTQ+ clients through family law issues with sensitivity and pragmatism.