Family & Divorce

Surrogacy is where a child is carried through pregnancy by a woman who has entered into an arrangement with the intention that, at birth, the child and parental responsibility for it will be transferred to another person or persons who will become the legal parents of the child.

The woman who carries the child is the surrogate mother and the parents who enter the agreement with the surrogate, with the intention that the child should become their child are known as the commissioning parents.

The surrogate mother (and her husband, if applicable) must give free and unconditional agreement, with full understanding, to the order being made.

It is important to note that UK law prohibits commercial arrangements for surrogacy in the UK. The court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received by either of the applicants  

Surrogacy arrangements are often made by heterosexual couples who have experienced issues of infertility, and also same sex couples.

Partial or traditional surrogacy

Partial surrogacy is the process whereby the surrogate mother is also the child’s genetic (biological) mother. The child will be genetically related to the father (or sperm donor) and the surrogate mother.

Total or gestational surrogacy

Total surrogacy is the process whereby the woman carrying the child is genetically unrelated to the child. She is a gestational parent. In total surrogacy the embryo is carried by the surrogate and can be created from:

  • A genetic mother’s egg and genetic father’s (or donor’s) sperm.
  • A donor egg and genetic father’s sperm.
  • A donor egg and donor sperm.

What is the legal status of the participants in a surrogacy arrangement?

The surrogate mother is treated as the child’s legal mother until, and unless, that situation is altered by order of the court.

If the surrogate mother is married, the husband of the surrogate mother (unless the court is satisfied that he did not consent to the arrangement) will be treated as the father of the child.

The commissioning father (who has donated sperm) is a genetic parent but does not acquire parental responsibility by virtue of this until the relevant order is made. If the surrogate is unmarried, a male commissioning parent who is genetically related will be treated as the legal father but this does not, of itself, confer parental responsibility.

The non-biological commissioning parent does not acquire legal parenthood or parental responsibility until the relevant order is made.

The permanent transfer of legal parenthood and parental responsibility to the commissioning parents can only be brought about by the making of an adoption order or a parental order.

Parental orders

A parental order confers legal parenthood and parental responsibility on the commissioning parent or parents. The effect of the order is that, in law, the child is for all purposes treated as their child and not the child of any other person.  The commissioning parents can apply for a Parental Order 6 weeks after the child is born, and before the child is 6 months old. 

The application can be made by one or two people who must be aged at least 18 years.

The applicant or one of the applicants where there are two people must have provided the gametes (genetic material) used to create the embryo. An arrangement involving both donor sperm and eggs would not be permitted within the scope of the legislation.

The conditions to be satisfied include that:

  • The child must be living with the commissioning parent or parents.
  • At least one of the commissioning parents must be domiciled in the UK, in the Channel Islands or the Isle of Man.
  • No money or other benefit must have been given or received, other than for reasonable expenses, unless the court authorises such payment.

For further information regarding the law around surrogacy within the UK then please contact our Family Team for a free and confidential consultation. 

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Family & Divorce

A Child Arrangements Order is an order that regulates with whom a child is to live, spend time or otherwise have contact with any person. Each Child Arrangements Order is decided on the circumstances of the individual family and on what is in the best interests of that particular child.

We have been contacted by parents over the last few weeks who are concerned and confused regarding their rights to see their non-resident children during the current Covid19 outbreak.

Many of these parents already have the benefit of a Child Arrangements Order which was granted following considered and lengthy court proceedings. Now however, parents are finding that despite a court Order in place, the other parent is refusing to adhere to it and is preventing the non-resident parents from having contact with the child or children. The reason they are giving for opposing contact is Covid19.

The current policy on this issue is clear. The Government published guidance on 29 March 2020 which specifically states that “Where parents do not live in the same household, children under 18 can be moved between their parents’ homes.”

In addition, the Children and Family Court Advisory and Support Service, known as CAFCASS has also provided helpful guidance on this issues which can be accessed here. As long as contact can take place safely then it should continue as per the Child Arrangements Order.

What about proceedings that are currently ongoing? There have been some changes to the Court system and most notably the majority of court hearings are being conducted remotely by telephone or video conferencing. In addition, nearly all CAFCASS officers are working remotely. This can be a confusing time and it is important that clients are given advice and guidance from experienced legal representatives.

If you are dealing with a Child Arrangements matter or are experiencing a dispute with your ex-partner about their adherence to an Order then please contact our specialist family lawyers  for a free confidential consultation on 0203 980 9348 or fill in the form for a call back.

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Family & Divorce

The current policy of isolation has for the majority shrunk our social circle down to our immediate family in our primary homes. The Government has been very scathing towards the few that have been flouting the ‘stay at home, save lives’ rule and the resignation of Scotland’s Chief Medical Officer makes clear that trips to second homes are not an exception to the rule.

For many couples this has meant that they are spending greater time than normal in each other’s company, within a confined space. This puts pressure on even the strongest relationship, and it is not surprising that there has been a reported rise in internet searches for ‘divorce’. In our usual day-to-day lives people are able to put aside marital difficulties by socialising with others and attending work events. With that no longer being possible couples are forced to confront the realities of their home situation with many deciding that separation is sadly inevitable.

On the financial side, many of our High Net Worth and Ultra High Net Worth clients are seeing the value of their portfolio of investments reduced as a result of the current coronavirus (COVID-19) pandemic. Assets may have fallen in value in the short term and therefore there is less to be divided between spouses. Whilst not an ideal situation, if clients have confidence that in the future their portfolio will likely stabilise, they are seeing now it as an opportunity to resolve their divorce and financial settlements.

For many separated couples, one of the primary assets is the formal marital home (FMH). The UK housing market is currently seeing a delay in the sale of residential properties across the board. This delay may also trigger capital gains tax, if they have left the FMH and are living in a different property to their spouse post separation. We have an ongoing dialogue with trusted independent financial advisors and tax specialists on this issue and early advice should be sought from such experts. Any liabilities, including tax, should be considered as part of the overall financial settlement.

There may also be different aspects to the financial negotiations to consider due to the current market volatility. We, as your legal representative, will think ‘outside the box’ and come up with innovative solutions. For instance, it may be prudent to think about percentage sharing, as opposed to providing your spouse with a fixed lump sum payment. It may also be sensible to put clauses in a Consent Order to set lower and upper limits concerning asset shares.

It is important to remember, however, that every family is different, so if you do have concerns, reach out to one of our specialist solicitors at Osbourne Pinner for tailored legal advice on 0203 980 9348 or fill in the form for a call back.

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