Gay, getting married, and having children? Get a pre-con!

There's been a media frenzy this year surrounding proposed legalisation of gay marriage and its implications, especially where it concerns forming a family and raising children. Here, expert family lawyer Fiorella Marchitelli discusses the main considerations...

While same-sex marriage is not yet legal in the UK, it is highly likely that it will be introduced before the next election in 2015.

Prime Minister David Cameron has pledged to push through full same-sex marriage rights for lesbian, gay, bisexual and transgender persons before the next election, while Home Secretary Theresa May has openly supported gay marriage rights by stating: “Commitment between people is a stabilising and strengthening force, so a commitment between two people of the same sex should be recognised.”

In London, Mayor Boris Johnson even broadcast his own YouTube video in August, backing gay marriage. "Same-sex couples should not be denied the 'happy state' of marriage," he said.

The benefits of same-sex marriage, and indeed civil partnerships (which were introduced in 2005), have been widely-publicised.

The Tory think tank Policy Exchange found in a report published this summer that same-sex marriage is "good for children" as children benefit from being raised in a married household, "regardless of the sex of the parents". It added that allowing same-sex marriage "would give more children more stable upbringings ... and encourage fidelity and commitment".

Further, an Office for National Statistics (ONS) study found that 52% of cohabiting couples had split up five years after the birth of a child, whereas only eight per cent of married couples had done so.

A separate ONS study suggested that civil partners are less likely to divorce than heterosexual married people. Just 2.5% of civil partnerships have ended in “dissolution”, compared with 5.5% of marriages ending in divorce - which can only be good for children of same-sex couples.
Why formal co-parenting arrangements are important
 
Against the backdrop of the same-sex marriage debate and the rise in same-sex couples setting up home and family together, two recent cases in 2011 - Re W-B and P & L - address the issues surrounding co-parenting relationships for gay and lesbian couples specifically, and highlight the need for same-sex couples to take, or at least, heed to legal advice on this subject, where children are concerned.

The law in England and Wales has recently had to deal with an increase in alternative parenting arrangements as many gay and lesbian couples have been starting families through artificial insemination, sperm donation and surrogacy. Unfortunately, many co-parenting arrangements may not have been properly formalised and hence the resort to a battle in the family courts as a consequence.

The first case, of Re W-B, involved two same-sex couples who had entered into artificial insemination arrangements.

The case showed how important it is to be clear and precise about each of the parents’ future roles, their levels of involvement and responsibility in the child’s life.
In his judgment, Mr Justice Hedley urged adults who wish to enter into alternative parenting arrangements to take the time to put their plan in writing; this document is to be referred to as a ‘preconception arrangement’ or “pre-con” as lawyers call them.

What is a 'pre-con'?
 
The purpose of a pre-con is to describe who will assume responsibility and at what level of involvement in the child’s life and upbringing, if ever the parties disagreed. And although the pre-con is not legally binding, it would be used as evidence in court in a similar way that prenuptial agreements or post-nuptial agreements are used in financial proceedings within divorce.

I would strongly urge same-sex couples contemplating having a child to enter into a detailed pre-con and seek specialist legal advice in order to agree and define what roles each party will play in the child’s life following the birth.  This is crucial in order to help prevent disputes at a later stage.

The concept of 'primary' and 'secondary' parents
 
The second case, the High Court case of P & L, rejected the traditional notion of mother and father roles and instead developed the novel concepts of ‘primary’ and ‘secondary’ parents to describe the roles played by lesbian and gay couples in a child’s life. That case concerned two children whose biological parents were a gay man and lesbian women each of which were in their own same-sex relationships.

The children lived with their mother and her lesbian partner. A dispute arose over the nature and extent of contact that the children should have with their biological father and his gay partner.

At an earlier hearing in July 2011, Mr Justice Hedley determined the nature of the relationship that had both been intended and developed between the children and the men and made provision for interim contact. In the same July judgment, the judge held that child P was suffering significant harm as a result of the protracted and intense conflict between the four adults. Child L, who was younger, was comparatively unaffected.

In the first judgment it was clear that although the parties had failed to agree on their respective roles before the first child was born, nevertheless it had been possible to discern some shape in what then happened.

All parties agreed that the women should be the principal parents and in particular the biological mother's partner would assume the role of second parent which in a traditional family would have been fulfilled by a father. And it was understood that the men would assume a secondary role; a position acknowledged as being significant both in terms of identity and providing the male component of a parenting relationship.

The judge described the terms ‘principal’ and ‘secondary’ parents as well as the difficulty in defining what parties can choose to agree to be their respective roles in these circumstances.

The court considered the children’s welfare (wellbeing, security, health and happiness) as paramount when determining any such agreement between the parents.
In the circumstances of the case, indirect contact (such as telephone calls and written communication) was ordered in respect of child P, and a direct contact order was made in respect of child L.

"In light of these recent cases in alternative families, I stress the importance of entering a pre-con and agreeing the future roles of the parties before the first child is born."
The above cases and societal influences warn against the use of stereotypes from traditional family models and show a more fluid approach to parenting and the roles in a more-than-two-parent-household.

Each case is fact-specific, so the importance of a bespoke pre-con setting out the roles and responsibilities of the numerous parties in the child’s life is crucial.

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About the author: Fiorella Marchitelli is a top London solicitor at Seddons, specialising in complex financial settlements within divorce, cohabitation and trusts disputes, and financial provision for children being born outside of marriage.