Births outside marriage on the rise – what are the legal implications?

In the UK, the number of marriages that take place each year is a fairly consistent figure, reflecting the fact that it remains an important tradition in modern society.

However, data from the ONS tells us that, while there have been no major fluctuations in the number of marriages (2020 aside), there has been a steady increase in the number of births occurring outside of marriage.

This increase led to a notable tipping point in 2021, when the number of births that took place outside of marriage outnumbered the number of births within marriages – 51% to 49%. This figure remained the same in 2022, indicating that couples now have fewer concerns over having children outside of wedlock.

This shift is especially notable when you consider the same statistics as of 20 years ago. In 2003, the percentage of children born within a marriage was 59% compared to 41% born outside of a marriage.

There are a number of potential reasons for this change to the modern family structure:

• An increase in the number of cohabiting couples
• Less stigma against non-married couples
• Financial independence for both parents

Whatever the reasons may be, it is important to note that having children outside of a marriage comes with specific legal implications for the parents.

In this article, we discuss some of the key legal issues that unmarried couples should consider when having a child, as well as the ways our children law solicitors will be able to support you.

Parental responsibility

Anyone who has parental responsibility for a child has the legal authority to make certain decisions related to their welfare and upbringing. Notably, parental responsibility relates to the duties a parent has towards their child, rather than their rights over their child.

Anyone who has parental responsibility will be able to have a say in any decisions that are made, which can include, but is not limited to:

• Providing a home and deciding where the child should live
• Protecting and maintaining the child
• Choosing and registering the child’s name
• Choosing the child’s education and/or religion
• Deciding on a child’s medical treatment
• Disciplining the child

Mothers are automatically granted parental responsibility in every instance. Partners, however, are only granted automatic parental responsibility if they are married to the child’s mother.

This means that, if you have a child outside of marriage, the partner will need to be named on the birth certificate to obtain parental responsibility. Failing that, they would need to enter into a Parental Responsibility Agreement or obtain a Parental Responsibility Order at a later date.

Wills

Wills are an incredibly important consideration for any couple with a child. For unmarried parents, the situation can be even more complex and have a range of potential implications further down the line.

If you and your partner are not married and do not have a valid Will in place, you will not be an automatic beneficiary of each other’s estate. Instead, the estate will be distributed according to the rules of intestacy, which can create a number of potential issues – especially if you have children.

In these situations, the child will inherit everything the deceased parent owned. It goes without saying that this could potentially cause a whole range of complications. In the worst-case scenarios, parents may be forced to bring a claim against their own children and/or family members for financial provision.

The importance of having a valid Will for unmarried parents cannot be understated.

Cohabitation agreements / prenuptial agreements

Cohabitation agreements are legal documents that an unmarried couple can make when they are living together. They can clarify both parties’ rights and responsibilities in the relationship, including in relation to their children, but also in relation to their property.

Prenuptial agreements can set out what should happen if they get married and then their relationship was to break down in the future.

Making a cohabitation agreement may be a good idea if you need to clarify your respective position as parents while you are not married.

Schedule 1 claims

Regardless of the length of the relationship, the rights that are available to married couples are not available to unmarried couples. This can lead to questions over what is likely to happen to jointly or solely owned property in the event of separation, particularly where children are concerned.

Schedule 1 claims (Schedule 1 of the Children Act 1989) can be made to ensure that children of unmarried couples are not disadvantaged financially by a separation. If a claim is made, the court can step in to address any financial needs of the children.

Depending on the circumstances, schedule 1 claims could be made to meet the housing needs of the child.

This may be something to keep in mind for unmarried couples. As a claim could significantly disadvantage one party, it would be important to clarify whether an agreement should be made so both parties are aware of what will happen to the property and children respectively.

Agreeing on schools and lifestyle choices

Schooling and education play a huge part in the lives of every child. Anyone who has parental responsibility will have a say in where their child goes to school, which means that disagreements between unmarried parents can be difficult to resolve in some cases. Mediation and legal intervention may be required to find a resolution.

If the father in an unmarried couple does not have and has not applied for parental responsibility, they will not automatically be able to have a say in their child’s education.

Financial security

There is no denying that marriage is a romantic notion. This has never changed, and tradition dictates that it will continue to remain true in the future.

Beyond this, marriage may well be one of the most financially sound decisions a couple can make, especially when they have children.

To summarise, once married, couples will gain automatic inheritance rights, parental responsibility, marriage tax breaks and the entitlement to a fair share of the family assets.

None of these are automatically permitted to unmarried couples, so individual arrangements will need to be made (potentially via a cohabitation agreement in certain situations).

Need further help with child arrangements?

As the most recent statistics tell us, having a child outside of marriage is extremely common. It does, however, mean that you and your partner may need to take the time to consider your current situation and what additional arrangements you need to make to ensure that you are both able to play an equal role in your child’s upbringing now and in the future.

At Barcan+Kirby, we understand how stressful legal matters involving your children can be, even when you and your partner are on the same page. We are available to provide practical and empathetic support that helps you to clearly understand your situation and what steps need to be taken to secure a positive outcome for you and your children.

Our child law solicitors in Bristol and South Gloucestershire have a wealth of experience and work with families across the UK. To arrange your consultation, call us on 0117 325 2929, click here to make an immediate start online or complete our simple online enquiry form.