11 October 2019 - Article
Having a baby is a momentous occasion in any person’s life. So much to think about in the run up to the birth with antenatal appointments, NCT classes, packing the hospital bag and acquiring the multitude of items on the ‘essentials’ new-born baby list. Legal issues are likely to be the last thing on your mind, but they shouldn’t be.
I have designed a helpful guide to some of the family law issues which will apply when your baby is born, whether you are married, unmarried, or single. But it doesn’t stop there – this blog is part of a series to help you navigate through the challenging waters of new parenthood. Employment law, estate planning and immigration are all areas that may well need to be considered now that you have a baby. But don’t worry, my colleagues and I have come together to share our expertise so that you and your baby have all the bases covered.
First edition: Family law issues
If you are not married
(a) Registering the birth and including the father’s name on the birth certificate
All births in England, Wales and Northern Ireland must be registered within 42 days of your baby being born. You should do this at the local register office for the area where the baby was born or at the hospital before you leave. (The hospital will tell you if you can register the birth there). A mother can choose to register the birth of her baby without the child’s father if they’re not married.
When registering the birth, a decision needs to be made as to whether to include the father’s name on the birth certificate. The legal effect of doing so is to give the father parental responsibility in respect of the child. Parental responsibility is the term used to describe the bundle of rights and responsibilities in respect of the child. It means you have a right to be consulted about ‘big ticket’ items such as the child’s name, where the child lives, their religious upbringing, any medical intervention and how they are educated.
(b) What surname will you give your new baby?
If you have a different surname from your child, some countries require that you carry extra documentation to establish your relationship, such as their birth certificate and/or a letter of consent from the other parent. Every country has its own requirements so be sure to check before you travel. A child’s surname can be changed after registration by deed poll or, informally, by use of a different name. Where both parents have parental responsibility, neither parent is entitled to change the child’s name without the other’s consent.
( c) Your shared home and the financial arrangements between you
Unlike on divorce or civil partnership dissolution, there is no particular set of rules that automatically applies if you split up from someone you have been living with – although where there are children, a parent can bring a claim against the other for financial support (more of which below). Having a baby is a watershed moment in a couple’s life which often forces them to consider the ‘what ifs’ of an unknown future. Having a frank discussion with your partner about what you would both consider to be fair in the event of a separation now that you have a baby is a sensible thing to do. This can be recorded in a cohabitation agreement. A cohabitation agreement can cover your home and any agreements in relation to your home that are not reflected in the legal documents. It can also cover who pays the mortgage and the bills and how the day to day running of the home is managed and what should happen in the event of a separation.
(d) How you hold your property
Do you already own a property jointly with your partner? Is now the time to think about the legal basis upon which you hold the property? Jointly held properties are either held as joint tenants, where your share of the property automatically passes to the other party on your death or tenants in common, where your share of the property passes in accordance with your Will on your death. It is possible to ‘sever’ a joint tenancy and turn it into a tenancy in common. It is usual with properties by tenancy in common for there to be a declaration of trust recording your respective shares.
If you are married
(e) Registering the birth
Either parent can register the birth on their own. They can include both parents’ details if they were married when the baby was born or conceived. Both of you will automatically have parental responsibility (subject to specific provisions which come into play for those who have entered surrogacy agreements).
(f) What surname will you give your baby?
You may still need to decide what surname to give your new baby, as you may not have the same surname as your spouse. Sometimes, in the context of a break-up, the wife/ mother will wish to go back to using her maiden name – and will want her children to also have her maiden name, either as a double-barrel name or as a new middle name. Changing a child’s name can be easy to do if the other parent agrees (see paragraph 1.1(b) above). If they don’t agree, it involves an application to court, which can be expensive and protracted. The court will ultimately make a determination based on what is in the child’s best interests.
If you are a single parent
If you are a single parent, you may be looking for financial support from the other parent. If an agreement cannot be reached with the other parent, you can apply to the Child Maintenance Service, or CMS, for child maintenance. In addition, you can apply to the court for capital provision in respect of the child, such as the transfer or settlement of property to provide a home for the child until they are 18 or finish university, and a lump sum for any child related capital expenses.
As a single parent, you will also need to consider suitable contact arrangements with the other parent. The court’s approach with very young children is to prefer a contact regime that provides for contact that is ‘little and often’ i.e. regular short bursts of contact, rather than longer (e.g. overnight) stays. Contact then usually increases gradually over time. This does of course depend on the individual circumstances. Agreeing a parenting plan at the outset is a sensible way forward and is something that we can help you with.
Whatever your situation, it is best to know where you stand. Look out for our next blog in the series, when we will look at employment issues which may arise when you have a baby – parental leave, employing a nanny, and going back to work.