Marriage (Same Sex Couples) Bill

Here at NGA we are keeping a close eye on the Marriage (Same Sex Couples) Bill and its progress through Parliament. The Bill has attracted much public interest this year after passing its second reading in the House of Commons on 5 February 2013 (with a majority of 400 to 175) and now having passed the committee stage on 12 March 2013. This blog is the first of a series as we track the passage of the Bill and the impact it may have.

What does the Bill do?

If passed, the Bill will finally give same sex partners in England and Wales the right to marry. It is currently unlawful in the UK for gay and lesbian couples to legally marry although since 2005 same sex couples have been able to enter into a civil partnership, which gives equivalent legal rights without the badge of ‘marriage’. The new legislation will not only enable same sex couples to marry but also, if they choose, to convert their existing civil partnership into a marriage.

At NGA we have long campaigned for equal rights for same sex couples and we welcome the upcoming changes. Whilst the introduction of the Civil Partnership Act in 2004 was hugely significant, it is not right to draw a distinction between marriage for straight couples and civil partnership for same sex couples. ’Separate but equal’ is a discriminatory approach in principle, in just the same way US racial segregation was in the 1950s.

Civil partners vs spouses: will it make a difference?

We help alternative families in a number of ways at NGA and are interested to see how the upcoming changes may affect same sex couples, in particular couples involved in a relationship breakdown.

Following the introduction of the Civil Partnership Act 2004 couples have been able to bring their civil partnership to an end by petitioning to the court for a Civil Partnership dissolution. If the Bill is passed, same sex couples who have married or converted their civil partnership into a marriage will be able to get divorced, like married heterosexual couples. In practical terms this may make little difference as the way the court deals with untangling things is likely to be broadly the same. One quirk of the rules (which will continue) is that is the petitioning party (the partner bringing the divorce proceedings) will not be able to allege adultery unless his or her partner had committed adultery with a member of the opposite sex. However, the other grounds for heterosexual divorce – unreasonable behaviour, 2 years separation (with consent), 5 years separation and desertion – will also be available.

In respect of resolving the financial matters which arise out of relationship breakdown, it is not known yet what, if any, impact the change in the law will have. There is already little difference as currently the factors the court uses to determine financial matters under the Civil Partnership Act are identical to those used for married couples. This approach was tested and confirmed by the Court of Appeal last year in the case Lawrence v Gallagher (2012). The case involved a same sex couple who were asking the court to determine their financial situation. As this one was one of the first reported cases testing the Civil Partnership Act 2004 the court considered whether the approach should be different from that for divorce. The court confirmed the approach of the court would be the same due to the similarities in the wording in the two Acts, although recognised that every case would be fact-specific. It is highly likely therefore that the law will remain the same in this regard for same sex marriages when dealing with financial disputes.

However, even if the law is the same, same sex relationships less frequently involve the traditional constructs of straight marriages and this can have a big impact on how the finances are divided in practice. If there are children involved, there may also be challenging sensitivities as to unequal biological or legal parentage. Even if the ground-rules of the law seem the same, this means that getting advice from specialists can make an enormous difference. For more information on Civil Partnership breakdown, divorce and children matters you can find more here. At NGA we specialise in family disputes and are recognised as leading specialists in family law for same sex couples. For those who want more information about entering into a civil partnership or marriage we can assist with pre and post nuptial agreements.

It remains to be seen what affect the Bill will have from a legal perspective and we will be monitoring it closely but for now we are pleased to see the progress that has been made. It’s a big step in the right direction.

The NGA team is growing again

I am delighted to post two pieces of exciting news about the NGA family.

First, a big welcome to Richard Perrins, a solicitor who has joined our team this month as an experienced family lawyer. He will be supporting all aspects of our work, but with particular responsibility for our disputed cases, including relationship breakdown, finances and children disputes – a growing area of our work. Richard is a member of Resolution and specialises in private family law, including divorce, civil partnership dissolution, financial matters and disputes relating to children.

Massive congratulations also go to Nicola Scott, who has completed her professional training with us to qualify as a solicitor this month. We are always pleased to break new ground, and Nicola is the first solicitor in the UK to qualify into fertility law having trained in this specialist field. She has been an integral member of the team since 2009 and so already has significant experience in surrogacy, assisted reproduction and family law, and we are very proud that she is now a qualified member of the legal team.

If Richard or Nicola (or any of us) can be of any help, please do not hesitate to contact us.

International surrogacy - UK High Court judge parenthood to non-British dads

The decision in Re A & B (Parental Order: Domicile) represents another landmark ruling for NGA – a parental order having been granted to a non-British gay couple following the birth of their son through Indian surrogacy last year.

The case not only clarifies the law for foreign but UK-resident parents conceiving through surrogacy, but also shows how same sex parents are being drawn to the UK’s open culture and law. We were proud to have supported the parents in this case through to successful conclusion, and once again to have helped make new law.

What happened?
The parents, who are American and Polish respectively, moved to the UK as a couple in 2008 (having registered their domestic partnership in California four years earlier). They were initially attracted to the UK by our unrivalled equal laws and gay rights – something they were not afforded in their respective home counties. Having decided to start a family, they found a surrogate through an agency in India and were delighted when their son was born in 2012. On their return to the UK they sought help from NGA to establish the non-biological dad’s parental status, which led to their application for a parental order (the legal solution following surrogacy, enabling both intended parents to become their child’s legal parents under UK law).

What does the law say?
In order to be eligible for a parental order, at least one of the intended parents must demonstrate to the court’s satisfaction that they are ‘domiciled’ in a part of the UK. Domicile for these purposes is more complex than simply where a person lives – it comes down to where their permanent roots and allegiances lie. This particular criterion (one of a number of strict requirements attached to the parental order) is designed to prevent foreign parents ‘forum shopping’, by using the UK court to grant them a more favourable legal solution than their own country might. The parents in this case therefore had to show that they had made the UK their permanent home and that, notwithstanding their American and Polish citizenship status, they had cut their ties with the US and Poland and did not intend to return.

What did the court consider?
In order to establish whether the parents in this case had met this high bar, the judge considered a number of factors in detail. She was particularly assisted by the parents’ statements, which outlined in detail their connections here (including that they ran a UK based company and both intended to apply for British citizenship at the earliest opportunity) and their affection for the UK including their very personal reasons for making it their home and the place that they raise their family, away from the discrimination abundant in their home countries. The judge went on to quote one of their reasons for not returning to the US, “We will never return and raise our son in a society in which schools may censor him from talking about his family”, as a factor which bolstered their contentions.

Why is this case significant?
Mrs Justice Theis reiterated in this case the importance, for non-British parents applying for a parental order, of demonstrating a clear intention to make the UK their permanent home – the court otherwise being powerless to make a parental order. The judge was also assisted by an independent investigation of the circumstances surrounding domicile by CAFCASS Legal, who found that the parents had abandoned their respective domicile of origins in favour of English domiciles of choice. This case (in addition to Z v C [2011]) provides helpful guidance for future non-British parents through surrogacy who hope to apply for a parental order.

What you need to know if you are not British, or are British and based abroad, and considering applying for a parental order
Domicile is a far-reaching principle of law and far from contingent on just one factor. Having dealt with the key cases which have tested the law on this, we would be happy to advise you on your eligibility to apply for a parental order, no matter what your circumstances. You can contact us here, or alternatively there is more information about domicile on our website.

Natalie on the Today Programme – who should have the rights where a surrogate baby is disabled?

Natalie was interviewed by James Naughtie on this morning’s BBC Radio 4 Today Programme about surrogacy. The programme covered a US surrogacy case which hit the news after a US surrogate mother refused to terminate her pregnancy at 21 weeks when it was discovered that the baby would be born severely disabled.

In the UK, surrogacy law gives all the rights to the woman who carries the pregnancy – she is the legal mother. Although a case like this has never happened in the UK, if it did there would be no doubt (as there was under US law) that the surrogate mother would hold all the cards. But is this the right approach?

In practice, we know on the ground that surrogacy disputes are incredibly rare. For the vast majority of cases, it would make more sense for the intended (biological) parents, rather than the surrogate, to have legal responsibilities much earlier – it’s what everyone involved wants, and the long delay transferring parenthood leaves children vulnerable for far too long. And where there are disputes, we need a more sophisticated approach to balancing the interests of all involved – surrogate, parents and child.

The real lesson of this case is that we can avoid problems like this by giving the right support at the start. Parents and surrogates need to communicate clearly, and those with radically mismatched views on termination should not proceed together. That is why it is so crazy that UK surrogacy law goes out of its way to deny those going into surrogacy arrangements the support they need. Under UK law, surrogacy contracts are unenforceable and illegal for lawyers to draft, and professional matching and brokering services are prohibited by criminal law. It’s time for that to change.

There is more information about surrogacy law and our campaigning work on our website.