Associate Jessica Keal discusses the evolving needs of LGBTQ+ family law clients, particularly in relation to adoption, marriage equality, and divorce, in eprivateclient.
"The history of marriage for the LGBTQ+ community is very different to the history of marriage for those who do not identify as part of that community. Same sex marriage was not legalised in England, Scotland and Wales until 2014, and not until 2020 in Northern Ireland. Discrimination based on sexual orientation was not banned until 2007. Many people still remember a time in England and Wales when same-sex acts between men were illegal. When considering the needs of LGBTQ+ clients, it’s important to be aware of this history and the lived experience of those within the community. For example, it’s understandable that many people in same-sex relationships do not wish to get married, as marriage was an institute from which they were excluded for so long. As a result, many same sex couples choose to co-habit and build their lives together without getting married. However, cohabitation does not afford the same protections as marriage should the relationship break down. If you have given up your job to care for children of the family, your former partner has no obligation to continue to provide for you financially.
With same sex marriage now being legal since 2014, those in the LGBTQ+ community who choose to get married are facing new issues they simply weren’t before. Pre-nuptial and post-nuptial agreements are now a viable option to help same-sex couples protect their assets in the event of marital breakdown. Sadly, it also means that we are seeing divorces amongst same-sex couples. The divorce rate for same-sex couples is actually much lower than the divorce rate for opposite-sex couples, but it still has the same devastating impact.
It’s important to be mindful of the history of the LGBTQ+ community and clients’ lived experiences. A journey taken by an LGBTQ+ client to get to the point where they are sitting in our office is very different to the journey that brought a cis-gender, heterosexual person to me. This can mean an LGBTQ+ client may have different emotional needs and require a different kind of support, and you need to be alive to this fact, not just to ensure your client’s wellbeing is protected, but also to ensure the instructions you receive are fully informed.
There can be some slight differences between those in same-sex relationships and those in opposite-sex relationships in the context of relationship breakdown and child maintenance. This is due to the fact that cohabiting relationships tend to be more likely amongst same-sex couples. The rules for paying child maintenance are the same whether you are married or not. If you have a child, you cannot excuse yourself from maintaining that child, financially, by virtue of relationship breakdown. However, as set out above, there is no obligation for one partner to maintain their former partner financially. This means that upon breakdown of a cohabiting relationship where there are children, one partner can find that they are not receiving enough support financially to provide their children with the same lifestyle that the children encounter when they are with the other parent. There are ways to resolve this, but it is complicated.
Further, the laws surrounding surrogacy, artificial insemination and adoption are complex and not well understood. If not done properly, having children through surrogacy or artificial insemination can result in one parent unintentionally not having ‘legal parenthood’ of their child. I put this phrase in quotes as it’s a legal term that isn’t widely understood. Put simply, it can mean one parent does not have parental responsibility for their child and so does not have to be consulted on certain important decisions in the child’s life. We have seen cases where following the breakdown of a same-sex relationship, it emerged that one partner (who wished to be able to spend time with the children of the relationship) did not have parental responsibility for the children and it resulted in complex and protracted court proceedings.
Every client’s needs will differ slightly because they will have different emotional needs. From a legal perspective, however, there are certain issues that a transgender individual would encounter whereas a cis-gender gay man or lesbian woman would not. For example, the process of obtaining a gender recognition certificate is not straightforward and there are calls for reform of the Gender Recognition Act 2004 (GRA), which governs this process. A gender recognition certificate allows transgender individuals to ensure that documents such as their driving license show their correct gender. It cannot be underestimated how important this is to transgender individuals.
The needs of the transgender, non-binary or gender exploring child also have to be considered. Decisions regarding medical treatment of the child would require the agreement of all who had parental responsibility for that child. In light of the controversy surrounding the Gender Identity Development Service (GIDS), part of the Tavistock and Portman NHS Trust in London, it is understandable that disagreements over how to parent a transgender, non-binary or gender exploring child can arise. Where parents cannot agree over how to raise their child, they may need to turn to the Courts for an answer.
I’d like to think that there are no barriers (to addressing the diversity of needs within the family law industry), it’s just a case of increasing awareness among family practitioners of some of the ways the needs of those in the LGBTQ+ community differ. Whether this is because same-sex couples are disproportionately affected by the lack of protection for those in co-habiting relationships, or increasing understanding of the laws surrounding transgender rights, surrogacy, insemination, and parental responsibility. As cliched as it sounds, this really is more of an opportunity to create a family law industry that can cater to the needs of everyone."
When asked how the family law industry can better address the diverse needs of LGBTQ+ clients, Jessica commented:
"By helping those in the LGBTQ+ community to understand some of the legal pitfalls they are more likely to encounter than those who do not identify as part of this community. As I’ve set out above, the first step is for those who work in the family law profession to ensure they are aware of the issues that affect LGBTQ+ clients. The second step is to ensure LGBTQ+ clients are aware of these issues. Many people still believe there is such a thing as common law marriage, and that they will have some sort of financial protection should their cohabiting relationship break down. It just isn’t true. Many people also aren’t aware of the complexities around surrogacy and ensuring the right people have legal parenthood. I believe that the government has a role to play here. An awareness campaign to clarify any misunderstandings about these areas would help, as would introducing these topics to the school curriculum.
No one should be treated differently because of their gender or sexual orientation. There’s a fine line between creating a safe space where someone knows that they are consulting an expert who understands their unique needs, and making someone feel different, or like they are being targeted for commercial purposes. If the family profession can increase awareness of the legal issues on which LGBTQ+ clients may wish to take advice, then there will be a natural increase in the number of clients consulting family solicitors."
Jessica's comments were published in eprivateclient, 24 February 2023, and can be found here.