There is an enduring urban myth that if you live with someone long enough, you automatically acquire the same rights as a married couple. But the reality is that no matter how long you live together, if you do not marry one another, you will not have the same legal rights as you would if you had tied the knot. That said, apart from one area, the law regarding children is exactly the same, whether the parents are in a civil partnership, married or unmarried.
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The one aspect that differs for cohabitating couples and their children surrounds parental responsibility. If the parents of a child are married, they both automatically obtain parental responsibility. However, if they are not married, then only the mother automatically acquires it. A father can obtain parental responsibility by being registered on the child’s birth certificate, at a later date with the mother’s agreement by entering a parental responsibility agreement, or lastly, by obtaining a parental responsibility order from the court.
Do children automatically stay with the mother if the parents are not married?
As stated above, fathers do not automatically obtain parental responsibility for their children. That is, unless they are married to the child’s mother. But this does not mean that if a father doesn’t have it, the child will automatically remain with the mother. The law itself does not impose bias, and historically, children tended to remain with the mother because the father was the main earner in the household. But there has been a societal shift, and this is no longer the case, as workplace roles have changed, so too have the roles of parents. Decisions are only made in relation to what is in the best interests of the child, not whether the parents were married.
I’m not married to my partner; can I get custody of my stepchild?
A step parent does not obtain parental responsibility by marrying the child’s biological parent, which puts them in the same position as an unmarried party. However, a married step parent will be able to obtain it by entering into a parental responsibility agreement. Whereas an unmarried step parent cannot. But there is another way.
An unmarried step parent who wishes to get custody of their stepchild could apply to court for a child arrangements order, and if granted, the court will also award parental responsibility. This would confer on them the same responsibilities and duties of a natural parent but would not affect those of the other parents to which it applies. Under ss49(1) of the Adoption and Children Act 2002, an adoption order can be granted to a couple in an enduring relationship without the prerequisite of marriage.
Can we co-parent if we are not married and separate?
Co-parenting can happen whether you are married or not and create a healthier environment for the children when both parents focus on putting their needs first. When starting co-parenting, it is always best to work out the ground rules with an eye on keeping the children’s schedules and lives as uninterrupted as possible.
Does my ex have to pay maintenance for our children if we are not married?
The law in relation to child maintenance is the same for both married and unmarried couples. If parents cannot agree child maintenance between themselves, they can apply to the Child Maintenance Service (CMS) online. The CMS calculates maintenance using several variables, such as:
- How many children there are
- The paying parent’s income
- The amount of time the children stay overnight with the paying parent
- Whether the paying parent is also paying maintenance for other children
Child maintenance is paid until the child is 16 or 20 if they are in full-time education.
Can I claim financial assistance from my partner other than child maintenance?
There is no legal way for an unmarried party to apply to the court for financial provision for themselves. But there is a way that an unmarried parent can obtain financial assistance from the court in respect of their child. This is under Schedule 1 of The Children Act 1989. In certain cases, the court can order one parent to provide to the other the following:
- A lump sum or periodical payments to cover expenses such as paying school fees
- Transfer property, or a property to be held in trust for the child until a “triggering event” such as the child reaching 18 or the end of their full-time education (secondary or university), at which point the property reverts to the paying parent
- Regular payments of child maintenance if the paying parent’s income is greater than the limit where the CMS deal with maintenance. This is generally seen as “top-up” payments
When making an order for financial assistance under the Children Act, the court must take the following into consideration:
- The financial circumstances of both parents, now and in the future
- The financial needs of the child
- The income, earning capacity, property, and any other financial resources of the child
- Any mental or physical disability of the child
- How the child was being or was expected to be educated
What can I do to avoid problems in the future?
To avoid issues arising in the future, you could create a cohabitation agreement, which is a binding contract that sets out who will pay for what, and how things should be divided if you separate. Although any arrangements you may make for children are not legally binding, it is worthwhile thinking about how they should be provided for over and above the minimum expected by the CMS. For example, in respect of school or university fees. It also enables expectations to be set down about how the children will be cared for and by whom if you lived apart.
It is essential for unmarried couples to consider these aspects if they separate and, if necessary, seek legal advice from a family law professional to ensure both parents’ rights are protected in matters concerning their children.
The information on this website is to be considered a guide and is therefore not legal advice. You use this information with the understanding that Wiselaw does not accept liability for any direct or indirect losses as a result of anyone relying on or acting upon the information on this website. Whilst we endeavour to provide accurate information, Wiselaw does not accept liability for any errors or omissions on this website.
