Gay & Lesbian

Gay men and lesbians have traditionally been ignored in English family law altogether. It was bad enough for someone to be gay, let alone for them to have a relationship or bring up children. Section 28 of the Local Government Act 1988 banned local authorities from promoting “the teaching in any maintained school of the acceptability of homosexuality as a pretended family relationship”. Fortunately times have changed and in 2006 the majority of the population in the UK agreed that same-sex couples are “rarely or never wrong”.

This change in attitude went on at the same time as the creation of legal recognition for same-sex couples through the Civil Partnership Act 2004. Andrea Woelke campaigned for the Act and lobbied on the Bill through his chairmanship of LAGLA, the Lesbian and Gay Lawyers Association. Since the creation of civil partnership almost every family lawyer is declaring competence to deal with the legal issues arising out of it. However, some aspects on the legal side are different to marriage. Andrea Woelke is the author of the legal textbook “Civil Partnership” (Law Society Publishing, 2006) and is one of the best people to advise on the legal issues surrounding civil partnership and same-sex marriage.

At the same time there are personal and social aspects about same-sex relationships, which can mean that they can be quite different to heterosexual marriage and which the majority of family lawyers would probably not appreciate.

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At Alternative Family Law solicitors we recognise that lesbians and gay men have needs that are sometimes different (and in many ways very similar) to those of heterosexual couples. Since we live in a world where the dominant majority is heterosexual and we are exposed to opposite-sex relationships all the time, not everyone has the experience and expertise to deal with the issues surrounding same-sex couples. Andrea Woelke is an expert on civil partnerships and former chairman of the Lesbian and Gay Lawyers Association.

Some same-sex relationships are strikingly similar to traditional marriage, others are not. It is important to recognise the potential differences to be able to advise on possible pitfalls and to find ways of how to use family law for the needs of lesbians and gay men.

A male same-sex couple, more than 20 years apart in age, who have lived together many years in a close monogamous relationship and have now decided that they would put their relationship on a different footing. One spends a lot of time overseas while the other one’s career has taken off and he wants to make the most of it. As such, they will be spending large parts of the year apart and have decided that they will have an open relationship. While this may in fact be an unspoken arrangement in a number of heterosexual marriages, it is probably more widespread in gay relationships, where such an arrangement is often by agreement and seems to work well. How this would fit into traditional family law concepts if this couple wants to enter into a pre-registration or pre-nuptial agreement or if they were ever to dissolve their civil partnership or divorce, is something we are exploring at Alternative Family Law.

Some same-sex couples have children, some are planning to have a family, a trend, which seems to be increasing. More and more gay and lesbian couples are exploring the options of how they can have children. These range from adoption and surrogacy to co-parenting arrangements, IVF through a clinic and self-insemination with sperm from an informal donor.

Sarah and Suzie are in a long-term relationship and would like to have children. They have discussed this with Sarah’s long-term best friend Jamie and his boyfriend Tom and are now planning that Suzie will have children through self-insemination with Jamie’s sperm. They also all want that the men, who live close by, have an active involvement in the upbringing of the children and although the children will live with Sarah and Suzie, if anything should happen to them, they want them to grow up with Jamie and Tom. Under the law as it was until 6 April 2009, the child’s parents would be Suzie and Jamie and neither Sarah nor Tom would have any parental rights. They could get parental responsibility through a child arrangement order, or if they are civil partners of the parent, through a parental responsibility agreement for step-parents or court order, but they could not be full legal parents of the child. If Sarah adopted the child, this would relinquish Jamie’s parental role altogether. Under the new law if the women are civil partners at the time of the insemination, and certain other conditions are met, both women will be the legal parents of the child and the men will have no rights or responsibilities. This presents the four with the dilemma because although they are planning for the children to have four parents, the law only allows them to have two.

One way to try to make the family law work for lesbians and gay men is to avoid litigation through the courts, where most judges will no doubt struggle to grasp the specific circumstances of the case. The two main ways to avoid court proceedings are to try to resolve issues arising from relationship breakdown through either collaborative law or mediation. Andrea Woelke is a founding member of Q’Pod, the only group of gay and lesbian collaborative lawyers. Andrea Woelke is also a mediator.

Other lesbians and gay men come to us when they have finally reached a stage when they feel ready to come out, sometimes after a marriage, which needs to be dissolved.

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10 May 2016 by Andrea Woelke