WillsWill Planning For Unmarried Couples – Guardianship

There are a number of differences between how married and unmarried couples are treated when it comes to estate planning. We often treat married couples as ‘the standard’ when it comes to planning but there are often key differences between married and unmarried couples. Treating unmarried couples the same way as married couples could lead to issues on death.

This article will examine the differences for parental responsibility and appointing guardians.

For further information on the will planning for unmarried couples, please consider joining our webinar on this on Monday 27^th January.

Parental Responsibility

Parental responsibility is defined by S3(1) Children Act 1989 as:

“all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.

It encompasses all the rights and responsibilities that a parent has in relation to their child, including making decisions about the child’s education, health, and welfare

It is effectively the power to make decisions relating to a child.

Parental Responsibility and Wills?

It is important to consider parental responsibility when making wills, as only a person with parental responsibility can appoint guardians for a child in their will and an appointment of guardians in a will only takes effect if one of the following applies.

• No parent with parental responsibility has survived the deceased; or
• Immediately before death a Child Arrangements Order (previously residence orders and contact orders) was in force in which the deceased was named as a person with whom the child was to live (unless the order was also made in favour of a surviving parent of the child); or
• The deceased was the child’s only (or last surviving) special guardian.

Who Has Parental Responsibility

A child’s mother will always have parental responsibility. A father however will only have parental responsibility if:

• He was married to the mother at the time of the child’s birth or later marries the mother;
• He was registered on the birth certificate as the father or the birth was later re-registered with him as the father;
• A parental responsibility agreement is made; or
• He obtains a parental responsibility order from the court

The situation for same sex parents is more complicated and is not covered in this article.

It is possible for others, such as a stepparent, to obtain parental responsibility, for example by entering into a Parental Responsibility Agreement, obtaining an order from the court or by adoption.

What’s the issue with unmarried couples?

When advising a married couple, you will know that the father has parental responsibility due to the marriage. Similarly when advising relating to children of a previous relationship, you will know the father has parental responsibility if that previous relationship was a marriage

The same cannot be said for unmarried couples and the father may not have parental responsibility.  In that event, the birth certificate should be checked to confirm if the father has parental responsibility or not.

This may impact how the will is drafted and what advice is provided around the will.

For example, if you are advising a mother with a child from a previous unmarried relationship, you will wish to see the birth certificate to confirm if the father has parental responsibility or not.

If he is named on the birth certificate, the mother can include guardianship for the child on the basis that she is aware that it does not take effect on her death if the father survives. If he is not named on the birth certificate, she could include a guardianship that takes effect even if the father survives.

 

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Photo by Markus Spiske on Unsplash