Unmarried parents – your legal rights and how to protect your family

If you and your partner have children and are not married to one another, it’s important to know the legal consequences and how to protect your loved ones from the unexpected.

Although this may not be something you wish to think about, it’s much easier to gain the right advice as early as possible.

Our partner and head of family law, James Marsden, sets the record straight and answers your frequently asked questions when it comes to the legal rights of unmarried parents and how to protect you and your family.

Should unmarried parents have a written agreement regarding the care of a child? 

Not necessarily.

When the court is considering whether or not to make one or more orders under the Children Act with respect to a child, it must not make the order unless it considers that doing so would be better for the child than making no order at all. This provision is otherwise known as the ‘No Order’ principle which is found in Section 1(5) of the Children Act 1989.

This provision is intended to discourage unnecessary court orders being made; by restricting orders to those cases where they are necessary to resolve a specific problem. It is thought that this should reduce conflict and promote parental cooperation and agreement.

Accordingly, it doesn’t necessarily follow that just because a child’s parents have separated that they will require a formal Child Arrangements Order or even a written agreement, whether that is undertaken formally or informally.

In fact, many separated parents are able to readily agree the arrangements for a child between themselves without requiring the involvement of solicitors or the courts. If there are disagreements then it would be worthwhile considering a written agreement and the parties may wish to look at alternative forms of dispute resolution, such as mediation, to come to an agreement.

What is the difference in parental responsibility of married parents and unmarried parents?

Parental responsibility is defined under section 3(1) of the Children Act 1989 as meaning all the rights, duties, powers, responsibilities, and authority that a parent of a child has in relation to the child and their property by law.

This is the same whether the parents are married or unmarried.

However, if a child's parents are married or in a civil partnership with each other when the child is born, both of them automatically have parental responsibility.

If the parents are not married or in a civil partnership with each other when the child is born, only the mother automatically has parental responsibility. The father can acquire parental responsibility if he:

• Marries the mother or enters a civil partnership with her.

• Enters into a parental responsibility agreement with the mother and files it at the Central Family Court.

• Obtains a court order giving him parental responsibility.

• Is named in a Child Arrangements Order as a person with whom the child is to live.

• Is registered as the child's father on the child’s birth certificate. Registration as father requires the mother's consent and applies only if the child was born on or after 1st December 2003. A person who is not the child's biological parent or a parent by operation of law, will not acquire parental responsibility by being named on the child's birth certificate.

• Becomes the child's guardian.

• Adopts the child.

Should a child born to unmarried parents be given the father's or mother's surname?

Parents can give their baby whatever name or surname they want!

Although it’s traditional to give a child the father’s surname, or, less commonly, the mother’s surname, the child’s surname could be a combination of both (for example) - or something completely different. 

In fact there’s nothing in the regulations (or in the statute) which restricts the parents’ choice of name (or surname) for their baby, and the registrar doesn’t have the right to refuse a name, except insofar as they might think it were something illegal (e.g. something racist).

Is there any impact for a child born out of wedlock on the claim of any family inheritance?

If a parent dies having made no Will then there is a significant difference as to how their estate will be divided depending whether the parents were married or not at the time of death.

If the parents were married, then the rules of intestacy set out that the deceased’s spouse is entitled to the first £270,000 of the estate in addition to the deceased’s personal belongings and then the balance is split equally between the spouse and children of the deceased.

If the parents were not married then the rules of intestacy do not provide provision for the surviving parent. Instead, the estate would simply be divided equally between the deceased’s 'children’ upon them reaching the age of eighteen. For the avoidance of doubt, the term ‘children’ includes illegitimate and adopted children, but not stepchildren. 

If a parent dies having made a Will, but makes no provision for their children, the Inheritance (Provision for Family and Dependants) Act 1975 allows certain categories of applicant to bring a claim against an estate where “reasonable financial provision” has not been made in a Will (or the rules of intestacy are such that unreasonable financial provision is made.

The category of ‘child’ includes an adopted or illegitimate child and a child who is conceived before the deceased’s death but born after death. Additionally, stepchildren would also be able to bring a claim if they are treated as a “child of the family”.

It’s not only minor children who can claim, but adult children can make a claim also. In order to determine whether an applicant can claim and the likely provision to be made, it shall be necessary to consider a range of factors set out in the 1975 Act itself.

For more information on this particular matter of family inheritance, please contact one of our experts Laura Fahy, Katherine Marshall, or Amy Murphy.