Legal Guidance for LGBTQ+ Couples: Divorce, Parenting & Financial Settlements

For LGBTQ+ individuals and couples looking to have children, there are various options like:

Surrogacy

Surrogacy is an arrangement in which a woman (the surrogate) gives birth to a child on behalf of another individual or couple (the intended parents).

Following the birth, a parental order can be obtained to transfer legal parenthood from the surrogate (and if applicable, her spouse) to the intended parents.

This ensures the intended parents are recognised as the child’s legal parents.

Surrogacy can be done in this country (domestic surrogacy) or in another jurisdiction (international surrogacy) but the laws around surrogacy will be different in every jurisdiction. It’s therefore important to seek early advice about your options and best practice

Adoption

Adoption is a process by which a person or couple assumes full legal responsibility for a child, acquiring all the rights and duties of a in the place of the biological parents. 

 LGBTQ+  individuals can adopt – either as single applicants or jointly as a couple. In both cases adoptive parents are granted full parental responsibility.

Donor Conception

Donor conception is the process of having a child using donated sperm, eggs or embryos from someone who is not the intended parent.

If donor conception formed part of your journey to parenthood, this can give rise to additional legal considerations for LGBTQ+ families in the event of separation or divorce. In England and Wales, legal parenthood and parental responsibility depend on several factors including:

• The method of conception
• The consent of the parties involved
• Whether treatment took place at a licensed fertility clinic

In some circumstances, a non-biological parent may automatically acquire parental responsibility but in others, further legal steps may be required to ensure you are a legal parent with the same rights and responsibilities.

On divorce, same-sex couples are entitled to the same financial remedies as opposite-sex couples.

It is important to try to reach an agreement in relation to financial matters following divorce or dissolution of your civil partnership, and it may be appropriate to obtain a clean break order, which means neither party has any future claim against the other.

The divorce or dissolution itself does not terminate the ability to make financial claims against the other.  In the absence of a clean break, you are open to claims against you years after divorce.

Within financial remedy proceedings, the court can make the following financial orders:

• Lump sum payment
• Spousal maintenance
• Transfers of property
• Order for sale of a property
• Pension orders
• Clean break order

As part of financial remedy proceedings, the parties will be required to provide full and frank disclosure of their assets and circumstances.

Often, parties to the proceedings will assert that any assets obtained before the marriage are non-marital and should not be shared between the parties.

This can be more difficult for same-sex couples, as same-sex marriage was only legalised in 2014 in England and Wales, which means there will be married couples who may have cohabited for a longer period before they were able to marry.

This can create more complexity around the assets and whether they should be marital or non-marital.

If you are not married or in a civil partnership, there remain potential claims if you have a child together, called Schedule 1 proceedings or, in the event you do not have a child, if there is a property you have contributed to.