Associate Rebecca Ledgerwood, in our Family Law team, discusses the legal structures that exist and how they are evolving to fit with the ever-changing dynamics of the modern family.
In the 21st century, the concept of “family” has significantly evolved. Gone are the days where a traditional “nuclear” family, a married heterosexual couple with biological children, is the only norm. Today, families come in many forms reflecting social change and cultural diversity.
What defines a Modern Family?
Modern families might include:
- Cohabiting couples, with or without children
- Single-parent households
- Same-sex couples, married or in civil partnerships
- Blended families, with step-parents and step-children
- Extended families, where grandparents or other relatives live together or share childcare
- Families formed through adoption, surrogacy, or donor conception
Whilst the law in England and Wales has made significant strides to reflect these realities gaps and challenges remain, with families often finding themselves having to navigate through legislation which does not squarely fit their situation.
Below are some of the basic concepts within family law.
Legal Recognition of Relationships
- Marriage and Civil Partnership
In England and Wales, both same-sex and opposite-sex couples can marry or enter into a civil partnership, giving them legal rights and responsibilities in areas like inheritance, pensions, and property.
Marriage or civil partnership provide some key legal protections including:
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- Claims to capital, income and pensions
- Automatic parental responsibility if married at the time of birth (for fathers)
- Inheritance claims
- Cohabitation
Despite widespread belief, there is no such thing as a “common-law marriage” or a “common law spouse”, under the jurisdiction in England and Wales. Unmarried couples, regardless of the length of relationship, have no automatic legal rights unless they have legally binding agreements or jointly own property.
This legal blind spot can leave cohabiting partners vulnerable after separation, particularly where the relationship has been long-term with children involved, or at the death of a partner. Campaigns continue to push for reform in this area to widen the financial claims for cohabiting couples.
Divorce, Separation, and Co-Parenting
- No-Fault Divorce
As of April 2022, couples can divorce without assigning blame, thanks to the no-fault divorce law. This reduces hostility and simplifies the process, particularly important where children are involved and there will be an ongoing co-parenting relationship.
- Child Arrangements
The law puts children’s welfare at the heart of family law. The courts encourage separated parents to make child arrangements themselves. When this isn’t possible, courts will intervene with Child Arrangements Orders, focusing solely on the child’s best interests. Child arrangements may be determined in respect of a child’s parents but also other family members i.e. step-parents on divorce.
Children and Parental Responsibility
Parental responsibility gives legal authority over decisions about a child’s upbringing, education, and health.
- Who has Parental Responsibility (PR)?
- A mother automatically has PR for her child from birth.
- A father will acquire PR if he is married to the mother or named on the child’s birth certificate (post-2003).
- Civil partners or step-parents can acquire PR through agreement or court order.
- Surrogacy
Legal parenthood in surrogacy cases is not automatic. Intended parents must apply for a parental order to become the legal parents, even where they share genetic links with the child.
This legal process is carefully regulated but can be emotionally and administratively complex, prompting calls for more straightforward legal frameworks.
- Special Guardianship
A special guardianship order grants an individual the responsibility of looking after a child until they’re 18, including granting that individual with PR. It is used in situations where a child cannot live with their parents and adoption is not right for them, an example of this may be for grandparents to be appointed as special guardians in the event of the parents’ death.
Looking Forward: Challenges and Reform
The law for families has made significant progress in recent years but issues remain, including:
- Lack of legal rights for cohabiting partners
- Complex surrogacy laws
Calls for reform continue, aiming for laws that better reflect the diverse realities of family life today and ensuring adequate legal protection for those in these situations.
Regardless of your family structure understanding your legal position can help you make informed decisions about your future.
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
