I am proud of my ‘modern’ family. We are just like many other families in lots of ways. We both have busy careers; we have the same worries as lots of other parents and enjoy spending time together as a family as much as possible. We are passionate about providing the best possible future for our son.

We are already taking steps to teach our young son, at 20 months old, about how he came into being. All research suggests it is better to be open about such issues as early as possible (of course, using age appropriate language and explanation).

Whilst it is important our son understands that he belongs to a family which is, in many ways, like any other and that a variety of family structures exist, it is naive to think he will not recognise that his family is in some way different. He has two mums and that is different. A difference that should be accepted and celebrated. Society has come a long way; significant progress has been made towards a more equal society.

I have been lucky. Family, friends and colleagues have been accepting of our modern family. I am, however, all too aware that many same sex couples face a life of secrecy, filled with prejudice and lack of acceptance. More progress can, and should, be made.

Views on the modern family will inevitably be shaped, to a certain degree, by the government’s approach. If we are to expect society to be open to the modern family, in all its forms, then legislation must be put in place and it must be truly equal.

Huge strides have been taken to create equality for those in same sex relationships. The Marriage (Same Sex) Act 2013 and before that the Civil Partnership Act 2004 have allowed those in same sex relationships to formalise their relationships. But they do so not entirely on an equal footing with those in heterosexual relationships.

Who’s the daddy (mummy or donor for that matter!)?

The issue of parentage is an important one to all families. However, the modern family has some additional considerations. Whether you are the parent who will carry the baby, or a husband, wife, donor or party to a surrogacy arrangement, knowing where you stand in terms of parentage is vital. It is important legally, socially, psychologically and emotionally to the adults and the child/children.

The issue of parentage is not straightforward. Some important influencing factors are:
• Whether the fertility treatment was carried out at a registered clinic.
• Whether the couple jointly consent to the treatment.
• Whether the couple are married to each other or other people.
• Whether a donor is used and whether the donor is known or unknown.
• What rights and responsibilities do the adults in the child’s life have and want to have and how is that best achieved, from a legal and practical perspective?
• In which country was the treatment carried out? Are there other international elements?

The modern family may also face other issues either on the start of their journey or if the decision is made to end the relationship. Cultural, social and religious issues may have a profound impact on the modern family. The wider family may also have firm views on the intended modern family structure or a particular path towards the starting of a family.

What is absolutely clear is that it is important to ask these questions upfront and to take early legal advice from a specialist about the implications of your proposed family structure.

When you have a newborn to look after, the last thing you want to be thinking about, when you are up during the early hours, is a looming court case at which your baby’s parentage is at issue. We are living in a world where we can much more freely talk about such issues, and information and guidance is available, thank goodness for that!

Same sex couples establish the same rights as those in a heterosexual couple when they marry, but it is on the breakdown that the differences are apparent. For instance, due to the definition of ‘adultery’ (sexual intercourse between a man and a woman, one or both of whom are married to another person), proceeding with a divorce or dissolution on that ground is not an option.

Whilst such an extramarital relationship can be cited as an example of ‘unreasonable behaviour’ (a ground on which both heterosexual and same sex couples can rely when pursuing a divorce or dissolution) for many, from a personal perspective, that is difficult to accept. If one party has been unfaithful, and that is why the marriage or civil partnership has broken down, then it is right that that can be relied upon when a divorce or civil partnership is pursued.

Equally, due to the definition of ‘consummation’, same sex couples are not able to pursue an annulment on that basis.

These may be considered to be relatively minor details which should not be too bothersome. However, if you are not affected by such limitations it is easy to take a dismissive view. On the breakdown of a marriage or civil partnership, it is often the detail that is the most important, either from a legal or personal perspective.

Such inequality cannot be right. It is likely that after only three years, the Marriage (Same Sex) Act 2013 already requires reform if it is to properly provide equality to same sex couples wishing to marry.

It is important to recognise that whilst modern families share a lot of features with the more ‘traditional’ family, from a legal perspective, there are some unique features which require careful consideration and expertise.

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Mundays LLP
Cedar House, 78 Portsmouth Road, Cobham KT11 1AN
Telephone: 01932 590500
Website: www.mundays.co.uk

Profile

Rachel Lemon is a Partner in the Family Team at Mundays LLP. Rachel has experience in all areas of family law, including financial matters where there are mid to high value assets and complex issues and matters with an international element. She has experience of private law children disputes, including applications for leave to remove a child from the jurisdiction.

Rachel heads the ‘modern’ families’ sector within Mundays’ Family Team. She acknowledges that the ‘modern family’ faces different challenges which are unique and require specialist expertise. Rachel can advise on issues such as parentage, the legal implications of donor conception and surrogacy arrangements.

Having started her own ‘modern family’, Rachel’s broad experience in family law is complemented by her personal experience and a keen interest and experience in this complex area.

She is also a trained mediator.

Rachel can be contacted by telephone on 01932 590612 or by email at rachel.lemon@mundays.co.uk.