Posted On / 12.11.2020

FAQ - The rights of unmarried parents

Family Solicitor Hollie Knapman answers frequently asked questions regarding the rights of unmarried parents.

1) How do the rights of married and unmarried parents differ?  

Married parents automatically both have parental responsibility for the child, when it is born.  

If you are not married, only the mother automatically has parental responsibility on birth. When registering the birth, placing the father’s name on the birth certificate grants him parental responsibility. Further, the mother has to be present at the time the father is registered on the birth certificate. An unmarried father cannot register the child’s birth alone whereas a married father can.     

2) How can an unmarried father obtain parental responsibility for their children?  

 An unmarried father has to be named on the birth certificate to have parental responsibility. If he is not named on the birth certificate, he will have to apply to the court for a child arrangements order using form C1, to grant him responsibility. If the parents can agree the mother and father can enter into a parental responsibility agreement. Both of these options can result in legal and court fees; however a parental responsibility agreement is a much cheaper option and avoids attending Court.

3) What issues can arise if unmarried parents don’t have the correct legal documents in place?  

Should you split up from your partner and not have parental responsibility, it can prohibit you doing some of things that people would consider the usual parts of parenting such as:  

· Changing the child’s name

· Changing their school

· Acting on their behalf, for example in financial matters.  

It may also mean you do not get to be party to proceedings in relation to the children as you will not be automatically added as someone with parental responsibility, although you should be given notice of any proceedings as the child’s father.   Not having parental responsibility  could mean decisions could be made about your child/ren that you are not aware of, and could go against your wishes for the child/ren.   

4) Common-law marriage does not exist. How can a cohabitation agreement and an updated will help to protect unmarried parents?  

 A cohabitation agreement and up to date Will is important for unmarried parents as it sets out clearly what you and your partner have agreed should happen if one of you were to die or you were to separate.   This can include:  

· Who is to act as guardian if both you and your partner were to die

· Who looks after money for your children if you were to leave them money upon death – children may automatically inherit if you do not have a Will, rather than the money going to your partner which is why it is important to have a Will reflecting your wishes.

· How you may wish for your time with the children to be split if you break up (although this is not legally binding)

· How the children will be financially supported if the relationship ends (there are statutory obligations through the Child Maintenance Service to help calculate this).

· Setting out what happens to any property that you solely or jointly own and how the house is run.  

Ensuring that you prepare these documents can potentially prevent arguments and disagreements in the event of a death or relationship  which could serve to further distress to all those involved; especially the children already going through challenging times.

5) What key considerations should unmarried parents make when making a cohabitation agreement or updating their will?

It is important to ensure that both parties are entering into the agreement in equal terms and that both parties seek legal and financial advice along with financial disclosure so there is complete transparency. It is also important, if a large event has triggered the drafting, that time is spent to negotiating thoroughly, to give a cooling off period after the event, e.g. receiving an inheritance or having a baby. Emotions can run high after these events, and hasty decisions can be made. It is also essential that reviews are built into these documents so they are regularly considered to see if they are still fit for purpose. If the parties intend to marry then the cohabitation agreement will need to be converted into a Pre-Nuptial Agreement.  

In terms of content, it is important to think about:  

· If there is a property how should that be owned and should it be in equal shares. If there are unequal shares it is advised to also prepare a Declaration of Trust. You need to consider what should happen to the property on death or separation and where each of you would live in those circumstances because you would not have the same rights as a married couple.

· How much money would be needed to support the children were the relationship to end. How would this be split if one of the parents earns more than the other?

· You need to consider how the household bills be paid and who will take responsibility that. 

· What would you do if one of the parent’s circumstances changed significantly, or they wanted to make a major lifestyle change, like moving country?  

It is impossible to particularise every eventuality but it is important to consider what is important to you and what you would want to happen upon death or separation. It is not a particularly romantic conversation to have with your partner but would argue an essential one. 

For more information contact Family Solicitor Holie Knapman on 01935 846255 or hollie.knapman@battens.co.uk 

More family law articles can be found here.