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My child’s father and I are separating – Does it matter if we were married or not?

When a couple has a child and then separates, one of their top priorities is usually to put a childcare arrangement in place to ensure that their child is well cared for.

This means that the parents either agree between themselves or with the help of the Courts how the child will be cared for, where the child will live and how their health and wellbeing will be protected.

Parental responsibility

Those with ‘Parental Responsibility’ for a child have legal responsibility for providing these essentials and raising the child. Persons with Parental Responsibility can make decisions about a child’s education, religious upbringing and medical treatment.

For the child’s mother, parental responsibility is automatic from birth.

However, the same is not true for fathers. They only have parental responsibility if:

They are married to the child’s mother; or
They jointly register the child’s birth and are named on the birth certificate.

While most fathers involved in arranging childcare upon separation from their partner fall into one of these two categories, this won’t always be the case.

Where a father does not have Parental Responsibility, he would have fewer legal rights and responsibilities towards the child but would still be required to support them financially.

Considerations for same-sex couples

The same applies to same-sex couples, although the process of obtaining parental responsibility can be more complex and so, upon separation, putting a childcare arrangement in place may be more difficult if this process hasn’t been done.

As long as one spouse is the child’s biological parent and listed on the birth certificate and the other spouse is married to, or in a civil partnership with, them, they will share legal parental responsibility for their child.

As with opposite-sex couples, if they are unmarried, the other partner will need to apply for parental responsibility.

Arranging childcare

In family law, the right outcome for the child is always the main priority.

For this reason, the law expects parents who share legal responsibility for a child to share in meeting the child’s needs.

Many parents will do so willingly and can formulate an arrangement between themselves – which may be formalised with an agreement overseen by a solicitor. However, some do not and the Courts will need to get involved.

For advice on childcare arrangements for separating parents and couples, please contact our Family Law team today.

Stuart Daniel

Director – Head of Family Department

I qualified as a Solicitor in 2006 and now specialise in divorce, financial settlements, childcare arrangements and Pre Nuptial Agreements. I have many years’ experience as a private family lawyer having worked with two other local firms before returning to Mander Hadley, where I first undertook work experience during my university studies.