Divorce is rarely a smooth process, even for those couples who part on good terms.
Whilst LGBTQIA+ couples are reportedly happier within their relationship than those within heterosexual relationships, sadly divorce and dissolution can still happen and there are some unique challenges of LGBTQIA+ divorce.
The most recent data (2020) suggests that in England and Wales, 42,000 gay couples married. In 2021, ONS data shows 1,571 same sex divorces, an increase of 36% on the previous year, and 67% of these were female couples.
In December 2005 the UK introduced civil partnerships which was designed to mirror a marriage and allowed those within civil partnerships to have the same legal recognition as married couples.
Same-sex marriage was legalised in England & Wales in 2013 which was a historic moment for the LGBT community. This provided couples with the option of entering into a marriage rather than a civil partnership if they chose. In 2019 those within civil partnerships were able to make use of the divorce process like married couples.
The key difference when looking at ending a LGBTQIA+ civil partnership or marriage is that those ending a civil partnership will follow the route of dissolution whereas those looking to end a marriage will follow the process of divorce, the same as those within heterosexual marriages.
Cohabitation
Cohabitation is becoming increasingly common across all relationships – it is the fastest growing family type in the UK and for LGBTQIA+ couples it may be that cohabitation lasts considerably longer given the difficulties that are often perceived within same sex marriages and civil partnerships.
However, it is important to think about assets that are obtained and shared during the relationship. When you are going through divorce proceedings seeking legal advice to understand your financial position is crucial.
Financial orders outline how both parties will divide their sole and joint assets upon the party’s reaching dissolution or divorce. This will include looking at the party’s properties, pensions, savings, investments, liabilities, and maintenance.
If you are not married or in a civil partnership it is important to understand that your legal rights are not in line with those who are. In light of this it may be worth considering whether a cohabitation agreement should be put in place to offer more protection to both parties. If you then decide to marry or enter into a civil partnership, this agreement can be transferred into a pre-nuptial agreement.
Child Custody
When parents decide to separate it is hoped that they will be able co-parent their children harmoniously and that there will not be a need to involve the Court. However, sadly this is not the reality for many.
If a LGBTQIA+ couple have a child together, depending on how the child was conceived, it may be that the child will only be biologically related to one parent. This can make child custody arrangements more complicated than those within heterosexual relationships when the child is biologically related to both parents.
For a child born to parents who are in a civil partnership or marriage at the time of birth, both parents will have parental responsibility for the child. Others will gain parental responsibility when registering the birth by way of being on the birth certificate or applying for parental responsibility. If a child was born through surrogacy you will have to obtain a parental order or alternatively adopt the child to gain parental responsibility. If you do not have parental rights, you do not have rights to custody.
Without parental rights, you cannot automatically make an application to the court in relation to the child. Instead, you must file an application requesting permission to apply.
When a party is considering making an application to the Court in respect of a child they are encouraged to attempt ‘mediation’ prior to making such application. Mediation can be highly successful saving both parties considerable costs and time.
Pet Custody Battles
For some couples, the options to have children are limited. Surrogacy in the UK is an expensive and is often a very complicated process, and the law in this area still falls behind modern family structures. There are also other options such as adoption.
However, many couples, especially those within the LGBTQIA+ community, will opt to have pets over children. Pets are seen to have a huge impact of their owners’ lives including reducing stress, anxiety, depression, easing loneliness, encouraging exercise and playfulness and adding joy and unconditional love to many lives.
In addition to this, pets can take on a different meaning if a couple cannot or chooses not to have children. The pet is the child. This can make divorces considerably more acrimonious, particularly since the law considers pets to be chattels, alongside cars, or even your dishwasher, rather than family.
In 2021, 27% of divorces involved the custody of a pet, and it looks like this will continue to increase year on year.
For couples in the LGBTQIA+ community, the battle for the pet can be even more embittered because of the status they hold in the family.
Many couples are turning to ‘petnups’ to mitigate the risk of losing their pet if their relationship breaks down. Although not legally binding, a petnup is used to determine the legal ownership of the pet, helping to prevent unnecessary stress for humans and animals alike at the end of the couple’s relationship.
Useful Links
Dating After Divorce: Listen on Spotify or watch the webinar on YouTube.
Thinking about divorce or separation
Self-care during divorce from the Stowe Family Law Break Up Club: Watch on YouTube
