Atypical Families

Maintenance

The Child and Family Relationship Act 2015 amends the law on the maintenance of spouses and children to take into account the fact that the unmarried parents of a dependent child may be parents of the same sex.  They allow the Court, in certain circumstances, to order payment of maintenance by a cohabitant of a child’s parent for support of the child.

The amended legislation recognises that parents of the child, who apply for maintenance for the dependent child, may be parents of both sex, if they are parents through donor-assisted human reproduction or adoption.

The amendments ensure that if they are not civil partners, they may seek maintenance for a dependent child.  The responsibilities of parents to a civil partner are taken into account in deciding whether to make a maintenance order.

A parent of a child or a person in loco parentis may apply for maintenance for a dependent child from the parent’s cohabitant, provided the cohabitant is not a parent of the child and he or she has been appointed as a guardian.

Guardianship

A cohabitant does not automatically become a guardian.  This reflects the principle that only a cohabitant, who has established a legal relationship with a child, may be subject to maintenance liability. The provision applies only where the cohabitant from whom the maintenance is being sought is not a parent of the child.  Where the cohabiting couple are both parents of the child, an application may be made under above-mentioned provisions.

An application may be made by a person who is not the child’s parent to seek maintenance from a parent’s cohabitant who is a guardian.  Equivalent provisions are already made for applications for maintenance from spouses or from parents to take account of the unusual situations where another person who has no maintenance responsibility for a child may be caring for that child.  An order would not be made under the above provisions, unless the cohabitant is not complying with that order and the Court considers it necessary.

A maintenance order under the above provisions is discharged when the dependent child reaches 18.   Guardianship of the cohabitant ends when the child reaches 18, so the maintenance obligation also ends.

Civil partners are included within the categories of parents who can apply for a lump sum towards the birth or funeral expenses of a dependent child.  Civil partners may apply for such sums in respect of a dependent child.

Maintenance Orders

Family Law Act contains provisions which allow a Court to secure maintenance payments that have been ordered against a cohabitant for the benefit of a dependent child and provide the Court with the power to specify how the payments are to be used for the benefit of the dependent child.  The definition of a cohabitant, as inserted by the 2010 legislation, is amended.

The Court may make an order to secure periodical maintenance that has been ordered against a cohabitant of a parent under the legislation.  The amendment provides that where a cohabitant is ordered to pay maintenance in respect of a dependent, the same security as may be provided against spouses, parents etc., can be provided for in the order.

If the Court makes an order to secure a periodical maintenance order, it has the additional power to specify how the maintenance payment is to be applied.  This may include the provision of suitable accommodation for the dependent child to whom the maintenance payment relates.

Relationships

The Child and Family Relationships Act 2015 amended the Succession Act.  Civil partners may both be legal parents of a child through donor-assisted human reproduction or joint adoption.  Joint adopters need not necessarily be married or civil partners.

The Succession Act was amended to confirm the parentage of children born as a result of a donor-assisted human reproduction procedure.  See the separate chapter on parties who are deemed to be parents in this case.

Where children are adopted by couples who are civil partners or cohabitants, are the children of donor-assisted human reproduction couples who are not married to each other or are civil partners, provision is made in the Succession Act to apply in relation to the estate of a deceased parent,  in accordance with the rules of parentage.  See the separate chapters in relation to parentage status in this case.

Inheritance

The child of a deceased person has a right to inherit a share of the estate if that person dies without making a will.  If the person makes a will but makes no or inadequate provision for the child, the child may apply for provision in accordance with section 117 of the Succession Act, if proper provision has not been made for him by the will or during his lifetime.

A child is precluded from applying for provision out of an intestate’s estate, , if the child is also the child of the surviving civil partner of the intestate. This is a recognition that,  the civil partners may both be parents of a child through joint adoption or through donor-assisted human reproduction. A similar exclusion exists in relation to a child of both the intestate and the surviving husband or wife.

Provision is made in relation to disclaimer.  The effect of disclaimer is amended to make provisions for civil partners.  If all or part of an estate of a person who has died intestate is disclaimed, the estate is distributed as if the person who disclaimed died before the intestate without having children.

There is an exception where the person is a spouse, civil partner or direct lineal ancestor of the intestate.  It provides for situations where civil partners are both parents of the child.  In this case, if one parent dies intestate and the other disclaims, the rules provide that the child would inherit the estate, as is the case with children of a marriage.

Failure of Provisions

Section 117 of the Succession Act, which allows for application by a child where inadequate has been made by a deceased parent, is amended by the 2015 Act.  The Court will not make provision, which would affect the legal right of the surviving civil partner, unless it is of the opinion that it would be unjust not to do so.

The amendment takes account of the fact that the surviving civil partner may also be a parent of the child.  In this case, Court will not make provision for the child that affects the legal share of the civil partner or any legal share of the civil partner on intestacy.  The same provisions apply in relation to a child who is a child of an intestate and who may or may not be a child of the surviving spouse.

A child may not apply for a remedy if his parents have made a disposition of property to the parent’s civil partner when the child is a child of both the parent and civil partner.  A similar exclusion already exists where the child is the child of both parents and the parent’s spouse.