Unmarried Couple with Child Splitting Up in the UK

When it comes to gaining custody of children, the law in the UK differs depending on whether the parents of the child are married or unmarried, as we will discuss in this article. If separating parents are not married, they will need to come to a child arrangement either between themselves or through the family court. It is also important to remember that even if separating parents are unmarried, the parent who the child does not live with (the non-resident parent) must still pay child maintenance to the parent who the child lives with (the resident parent). 

Who has custody of a child when the parents are not married in the UK? 

When unmarried parents separate in the UK, the custody arrangements for their child will depend on who has parental responsibility. In the UK, the term ’child custody’ is more commonly referred to as ‘child arrangement’. Having parental responsibility (PR) grants you the right to actively participate in important decisions regarding your child, including health, well-being, education, and religion.  

Ordinarily, it is the mother who automatically gains parental responsibility. An unmarried father, on the other hand, will only have parental responsibility if they are named on the birth certificate or if they apply for and gain parental responsibility from the family court. 

If both unmarried parents have parental responsibility for their child, custody is not automatically granted to either parent. Instead, they need to reach an agreement on child arrangements, such as where the child will live, who they will spend time with, and when. If an agreement cannot be reached, either parent can apply for a Child Arrangement Order, allowing the court to decide. When considering a Child Arrangement Order application from unmarried parents who both have parental responsibility, the family courts tend to favour co-parenting arrangements (i.e. where both parents raise their child).  

Unmarried fathers’ rights in the UK 

As an unmarried father, you will not automatically have parental responsibility for your child, as is the case for the mother. There are three ways to gain parental responsibility: to marry the mother of your child, have your name included on the child’s birth certificate, or apply to a family court for parental responsibility as an unmarried father. 

It is common for unmarried couples to have a child and not name the father on the birth certificate, meaning they do not have parental responsibility automatically. If, over time, the relationship deteriorates, leading to a separation, it is understandable that the father may then wish to formalise the right of parental responsibility to play a role in the life of their child. 

To apply for parental responsibility as an unmarried father, you will need to enter into a Parental Responsibility Agreement with the mother of the child. Once completed, the form should be taken to your local family court to be signed and witnessed. You will also need to take the child’s birth certificate with you and a form of ID. Two copies of the form also need to be sent to the Principal Registry of the Family Division. 

If the mother of the child does not agree to your application for parental responsibility, you will need to apply for a parental order from a family court using form C1 and pay a fee of £232.¹ Once completed, the form and fee should be sent to your local family court for consideration.  

Given the importance of making a successful parental responsibility application, it is always advisable to seek legal advice. Our family law solicitors understand the process of gaining parental responsibility and what the court will look for when deciding. Please speak to our family law team today to discuss the best way to handle your application based on your individual circumstances and those of your partner and child. 

Unmarried mothers’ rights in the UK 

Unmarried mothers automatically gain parental responsibility for their children, so there is no need to apply for parental responsibility. But what if unmarried parents separate? Understandably, many unmarried mothers are unsure about their rights to financial support if they separate from the father of their child. There are two main ways to seek financial support for a child as an unmarried mother: 

1. Child maintenance from the child’s father 

2. Periodical or lump sum payments from the child’s father 

It is important to bear in mind, though, that those who are unmarried are not entitled to spousal maintenance if they separate.  

Child maintenance payments 

Child maintenance payments are intended to help cover the day-to-day costs of raising a child (e.g. food and clothing). Payments are normally managed by the Child Maintenance Service (CMS) and can be taken ‘at source’ directly from the wages of the non-resident parent. When working out how much you are owed in child maintenance, the CMS will consider the father’s income, the number of children they pay maintenance for, and the number of nights the child spends with their father. 

Periodical or lump sum payments  

An unmarried mother may be able to apply to a court for a periodic or lump sum payment from the other parent to cover any additional costs of raising the child under Schedule 1 of the Children Act 1989. 

Such payments may be necessary for costs not covered by child maintenance (e.g. private school fees). When deciding on this type of order, the court will consider several factors, including: 

• The financial circumstances of each parent (now and in the future) 
• The financial needs of the child 
• The income, earning capacity, property and other financial resources of the child 
• If the child has any physical or mental disability 
• How the child was being educated during the relationship 

References 

¹ GOV.UK: Form C1