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Considerations For Same-Sex Parents Upon Divorce or Separation

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Reaching an agreement relating to children can become difficult in any situation involving the breakdown of a relationship between parents.  However, when a same-sex couple separate there may be additional considerations to bear in mind when considering future arrangements and each person’s legal rights in relation to the children.  Children may have been adopted, born through surrogacy or donor insemination, or one partner may have children from a previous relationship.

Parental Responsibility

The way in which a child is conceived in a same-sex relationship can have an impact on which parents are considered to have “parental responsibility” for that child.  Parental responsibility is the legal term which reflects the rights, duties, powers and responsibilities that a parent has in relation to the child.  This may include decisions relating to a child’s schooling, medical treatment or a change of the child’s name.

There are various ways in which parental responsibility may be acquired which may include, for example:

  • The birth mother of a child, including a mother who has carried a child as the result of IVF/donor insemination.
  • If you were married or in a civil partnership with the mother of the child when the child was born, whether through fertility treatment or otherwise.
  • If you have adopted your child.
  • If your child was born through surrogacy and you have obtained a parental order in relation to the child.

Agreeing Arrangements

It is always the preferred option for parents to reach an agreement regarding the arrangements for children in an amicable way.  However, this is not always possible and in some cases communication between two parents or the arrangements for the children will break down.

Mediation can be a useful tool to facilitate discussions between parents and to reach an agreement about the children in a conciliatory way.

In some cases, it will not be possible to agree what should happen in relation to the children and it will become necessary to make an application to the court for an order which sets out with whom the children should live and/or how they should spend their time with each parent.

If you do not have parental responsibility for a child, you are not automatically entitled to make an application to the court in relation to the children and must first ask the court for permission to apply.

When considering cases in relation to children, the court’s paramount consideration will be the child’s welfare and there are various factors the court take into account in assessing this.


If your partner has a child from a previous relationship before you were married or entered into a civil partnership, you will be considered that child’s step-parent (and vice versa).

If you cohabited with your partner and their child from a previous relationship, then you will not legally be considered a step-parent.

Being a step-parent does not automatically give you parental responsibility for that child, however this may be obtained by agreement or by a court order.

Whether you were married to or in a civil partnership with the child’s parent, or whether you cohabited with them and the child, you may be able to apply to the court for an order which sets out arrangements for the child if these cannot be agreed.  If you had a close relationship with that child, the court may want to ensure that relationship continues and is promoted.

There will be some additional considerations to take into account in such cases and it is therefore best to obtain legal advice at the earliest opportunity.

We are able to provide you with specialist legal advice and guidance according to your individual circumstances.  We will listen to you, advise you and guide you through the process.

Disclaimer: The contents of this article are not designed to constitute legal advice and is for information only.

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