Does it really matter in 2015?
Increase in children born to unmarried parents
There seems to be no doubt from a social point of view that times have moved on in terms of how people view children born out of wedlock and there is no longer the stigma there was say 30, 40 or 50 years ago. Whether this is because of any increase in births outside marriage or whether the lack of stigma has led to the increase it is not necessarily clear but the statistics from Births by Parents’ Characteristics in England and Wales 2014 which have recently been released by the Office for National Statistics show that in 2014 just over half of births occurred in marriage or civil partnership (53%) compared with 58% in 2004 and 93% in 1964. From a legal point of view, however, what are the implications in terms of children born to unmarried parents because it is not necessarily correct to say that it does not matter.
The first point is in relation to the issue of parental responsibility. Parental responsibility is the legal concept of the rights and responsibilities of being parent and practically schools, hospitals and so on will require a decision made about a child to be made by somebody with parental responsibility.
A mother automatically has parental responsibility for her child from birth but a father does not. A father will usually have parental responsibility if he is married to the mother but if he is not then the position is different.
From 1 December 2003 if he jointly registered the birth of the child with the mother then he will have parental responsibility (which will cover a lot of cases) but if for some reason that did not happen then the father does not have automatic parental responsibility and there either has to be a parental responsibility agreement signed or a parental responsibility order has to be obtained from the court.
The child’s name
One other potential issues to be aware of is that the child’s birth may be registered with the child having the father’s surname. Assuming that the parties are not married then usually this will mean that the child then has a different surname to their mother. If the parties then separate the mother needs to be aware that assuming the father does have parental responsibility she cannot simply change the child’s surname to her surname. This can only be done with the consent of everybody with parental responsibility or with an order from the court.
There are some big differences legally between being married and living with somebody from a financial perspective.
If you are married to your child’s parent then if you separate there are a host of orders which the court can make to include orders transferring or selling property, orders that one party pay a lump sum to the other, orders in relation to pensions, and orders in relation to maintenance payable from one party to the other.
That is not the case if you unmarried. Any legal claims which you have would be restricted to claims with regard to property under Trust of Land Trustees Act 1996 or potentially applications can be made under Schedule 1 of the Children Act 1989 but those must be justified on the basis of the child’s needs.
This can lead to very unfair situations where one party is effectively left with nothing when the relationship ends and may be struggling to rehouse and / or meet the needs of themselves and their children even though they could have been with their partner say 20 or 30 years and may have given up work to care for the children or, at least, it has had a negative impact on their ability to earn and their own capital and pension provision.
Back in October 2014 Rick Barrow of Jackson Barrett & Gass collaborated with James Maguire and together they produced a blog about the myth of the common law husband and wife which dealt with some of these issues.