It goes without saying that the introduction of no-fault divorce on the 6th April 2022 represented one of the greatest shifts on the part of the government in the 21st Century, to not only keep abreast of societal views as to the family unit and what that embodies, but to transform the practice and application of Family Law to reflect this.
This is particularly the case for the LGBTQ pl plus community who, prior to the introduction of no-fault divorce, did not have legal equality in divorce proceedings. This was due to the fact that, as the pre-6th April 2022 law did not recognise the act of either lesbian or gay intercourse, there could not be any adultery; this being one of the 5 facts upon which a heterosexual petitioner could previously base their divorce petition. The introduction of no-fault divorce will therefore, without doubt, level the Family Law playing field between the heterosexual and LGBTQ plus community creating one uniform approach to divorce for everyone.
However, whilst these changes represent “one giant step” for divorce law, there are still significant steps that need to be taken to address legal issues which arise for unmarried (or those who have not entered into a civil partnership) LGBTQ plus couples in the arena of child law and the protection of children and parents’ rights on separation.
Whilst fertility clinics have doubtless provided a useful service in artificial insemination for the LGBTQ plus community, it is no surprise that there are many couples who either cannot afford to utilise their services, or simply decide to enter into agreements with other gay/lesbian friends directly in this regard. Whilst these DIY agreements undoubtedly work for many couples; the fall out for both the couples and the children can be significant even when legal steps have been taken at the outset to protect the individuals involved i.e. by confirming the parents on the children’s birth certificates and by entering into Parental Responsibility Agreements. There are still strict provisions governing the advice which can be given on surrogacy arrangements which is remarkably restrictive.
Examples of this have been where lesbian and gay couples have shared the parenting of children created between them. In a recent case involving two children, it was agreed between the lesbian and gay couples involved that a woman and a man from each of the couples would provide the egg and sperm for one of the children, and the remaining couple the egg and sperm for the second child. On the respective children’s birth certificates, the parties named the biological parties as the parents. No parental responsibility agreements were entered into, it being verbally agreed between the parties that the children would have two mummies and two daddies, the care being shared equally between the couples. All went well until both couples both went through acrimonious separations when the children were 2 and 3yrs of age respectively, giving rise to a situation whereby the children were in danger of not only being separated from each other, but each losing contact with a mother and father figure respectively; the parties themselves, of course, being in the same heart-breaking position.
Whilst this highlights the importance of parental responsibility agreements being entered into in such circumstances at the outset to ensure that the non-biological parents have parental responsibility, it also raises further questions as to how to protect a child’s long-term interests when they have what could be classified as multiple parents. In practice, the reality of such a situation leaves the court with the unenviable task of determining the level of child contact between all the parties in the best interests of the child and balancing this with the right of the “parents”. In such cases (or even for those involving one biological donor friend with no PR agreement who wishes for contact and who is not on the birth certificate) the court has to grapple with a potential situation of making an order whereby a child may spend time in multiple homes in order to meet contact arrangements following separation, as a result of the parental responsibility agreements entered into at the time of their birth.
Therefore, whilst the law may have circumnavigated the sexual minefield that was the pre 6th April 2022 divorce process, it arguably still has some way to go to address issues relating to the parental rights and its impact on unmarried LGBTQ plus couples and their children.