I have already blogged here about the need for reform of the law relating to cohabiting couples. A few more thoughts on this subject.
As I explained in my last blog, there are two alternatives to the current inadequate law; there could be a difference model, where cohabitants gain better rights, but do not get the same rights as married couples, or the de factor (assimilation) model where cohabitants enjoy the same rights as married couples. My conclusion that the de facto model would be the best way forward. The evidence from Australia and New Zealand suggests that a de facto does not deter people from marrying.
If there is to be a de facto cohabitation law, then how will this affect parents and their children and the issue of parental responsibility?
Parental responsibility is defined as the rights, powers, duties and responsibilities of a parent towards a child. All mothers have parental responsibility for their children from the moment that they are born. At the moment, unmarried fathers do not have automatic parental responsibility for their children (whereas married fathers do). Sharing parental responsibility has the following effect:
- Both parents have the right to be involved in deciding significant issues such as healthcare, education and discipline.
- Before changing a child’s name, they need to seek each other’s consent or a court order authorising it.
- Before taking a child under 18 outside England and Wales, they need to seek each other’s consent or a court order authorising it. To do so without consent or an order would be unlawful, although it is not a criminal offence.
- Taking a child under the age of 16 outside the United Kingdom without each other’s consent or a court order authorising it is a criminal offence.
It is relatively rare to encounter an unmarried father nowadays who does not have parental responsibility for his children. This is because the law was changed in 2003 so that fathers who are registered as the child’s father automatically gain parental responsibility. Married fathers have it from the moment their child is born, whereas unmarried fathers usually get it when their child’s birth is registered. Registration must take place within 42 days of birth. Therefore, many unmarried fathers don’t have it for up to 7 weeks after the child’s birth; I often encounter parents whose relationship has broken down in the immediate aftermath of a birth or during pregnancy, and some of those mothers don’t then put the father on the birth certificate when its birth is registered.
If the unmarried father is never registered as the father, then he doesn’t share parental responsibility. There are still a relatively small number of unmarried fathers in this position. These fathers can subsequently gain parental responsibility, equal with the mother, by applying successfully to the Family Court for a parental responsibility order, or by her granting it to him in a parental responsibility agreement, or by the birth being re-registered or by the father and mother marrying.
If (and hopefully when) a new cohabitation law is introduced, what effect will this have on parental responsibility? Where a couple qualifies as cohabitants under the new law, will an unmarried father not on the birth certificate automatically gain parental responsibility at that point? How long will parties have to cohabit before they qualify?
And if the new law permits the parties to opt out of the new law by entering into a cohabitation agreement to that effect (effectively like a pre-nuptial agreement), will this mean that they also are able to opt out of an automatic entitlement to parental responsibility?
8 September 2024
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