Many unmarried couples have children together. But who automatically has parental responsibility? And what can unmarried parents do to make sure their rights and their children are protected? We discussed this and more during #SolicitorChat.
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How do the rights of married and unmarried parents differ?
A person married to the mother at the time of the birth of a child automatically obtains parental responsibility for that child. An unmarried father will have parental responsibility in certain circumstances, most commonly if they are named on the birth certificate for the child.
Should both parents have parental responsibility their rights regarding their children do not differ.
How can an unmarried father obtain parental responsibility for their children?
Parental responsibility can be obtained by an unmarried father by being named on the birth certificate at the time of birth or registered as the father at later date with the mother’s consent (and provided no-one else has been previously named as the father); by a parental responsibility agreement with the mother; marrying the mother; by being formally appointed as a guardian or by order of the Court.
What issues can arise if unmarried parents don’t have the correct legal documents in place?
If a father does not have parental responsibility, they do not have equal rights to make decisions regarding the children to include but not limited to schooling, medical, travel, religion etc. However, if the father is the biological father and the mother is refusing to acknowledge the father, the Court (upon having evidence of parenthood) will grant an order to give the father parental responsibility.
Common-law marriage does not exist. How can a cohabitation agreement and an updated will help to protect unmarried parents?
Unmarried parents do not have the same claims against each other as married parents. The claims of unmarried parents are very limited (only property claims to assert an interest in a property under trust law and orders for the benefit of/to maintain the children exist rather than the benefit of the parent). A cohabitation agreement can set out how the parties manage their finances both during the relationship and upon any breakdown. It can record the parties’ intentions and will be used to assist should there be a future dispute. This should be entered into alongside a declaration of trust for any property owned by the parties.
What key considerations should unmarried parents make when making a cohabitation agreement or updating their will?
You should be aware that a parent that is not married will not automatically inherit the estate of the other parent nor will they benefit from any inheritance tax exemptions. Should you wish the other parent to inherit this will need to be specified in a will.
All parents should consider appointing guardians in their wills.
The contents of this article are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this article. © Mundays LLP