Info & Advice

Does my ex have rights over our unborn child?

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Under UK law, an unborn child does not have any rights because it is not recognised as a “legal person” until it is born. This makes attaching parental rights to unborn children problematic, because until it is born, no one can have parental responsibility for it.

Parental responsibility (PR) is an umbrella legal term that encompasses all the legal rights, duties, powers, responsibilities, and authority a parent has for a child and their belongings. Therefore, someone who has PR for a child has the right to make decisions about their upbringing, care, and any other important decisions as they grow up. Although such choices must be agreed with everyone who holds PR. This is usually the mother and father, but can also be a step-parent or special guardian.

When do parents acquire parental responsibility?

When a child is born, the mother automatically obtains PR as soon as the child is born. Whereas a father will only automatically acquire PR on birth if they are married to the mother when the child is born. It is important to note, that a father will not lose PR if they subsequently get divorced from the mother. However, fathers who are not married to the child’s mother when it is born will not automatically acquire PR, although they can obtain it in one of four ways:

  • Having their name registered on the birth certificate
  • Entering into a PR agreement with the mother
  • Obtaining a PR order from the court
  • Being named as a resident parent under a Child Arrangements Order

What are the rights of fathers before birth?

Whether you are married or unmarried, a father has no rights to make any decisions in relation to the pregnancy. A father would therefore need the mother’s consent to:

  • Be present at the birth/notified about the birth
  • Visit the mother/baby in hospital following the birth
  • Attend medical appointments, such as scans or ante natal appointments
  • Access to medical records relating to the pregnancy

Does the mother legally have to register the father’s name on the birth certificate?

There is no legal requirement for a father’s details to be included on a birth certificate or for a child to be given the father’s surname. It is for the mother to decide whether she will allow the father to accompany her to register the birth and be named on the child’s birth certificate.

Therefore, where the parties were not married, and a father is unsure whether he will be invited to register the birth, he would need to wait until the baby was born to either:

  • Enter into a PR agreement with the mother; or
  • Make an application to court for a PR order

If a father does not have PR for a child, they still retain certain legal duties, such as one of financial support for married, divorced, or separated couples and paying child maintenance.

Does a father have to support their pregnant spouse financially if they separate or divorce?

Married fathers have financial obligations towards their spouse and their unborn child. Under the Matrimonial Causes Act 1973, the court has the power to order the father to make maintenance or support payments to ensure that the mother’s basic needs are met during the pregnancy. This can be calculated by measuring the couple’s available financial resources, their standard of living during the marriage, and whether a modest income should be stretched to meet the mother’s additional needs during the pregnancy. After the child is born, the father will be subject to additional financial obligations as part of the divorce settlement, and child maintenance payments.

If you are not married, there is no law which provides for maintenance to be paid between ex-partners or a redistribution of assets if you separate. However, under Schedule 1 of the Children Act 1989, the court can order one parent to pay a lump sum to the other for the benefit of the child. For example, to reimburse expenses related to the birth, the cost of a family car or school fees. There is also no limit to the number of applications that can be made for a lump sum order during a child’s life.

In addition to the above Schedule 1 order, the court can also transfer property or order a party to purchase a property on trust for the other parent for a set period of time. This is usually until the child reaches the age of 18 or completes full time education. At that point, the property will revert back to the person who purchased it.

Do I have to agree to contact to our new born?

No one has an automatic right to contact, and it should be what’s in the best interests of the child. That said, a child has a right to a meaningful relationship with both parents, and the best starting place is the beginning. Initially, this will allow the father and baby to form a bond, and can generally only be done with babies when the contact is frequent and for short periods. Of course, this may be difficult if your ex is working, so flexibility will also be an important factor. You will also need to consider your ex’s wider family, who will probably want to get involved in the baby’s life as soon as possible, too.

In the early days, you must do what is right for you and the baby, especially if you are recovering from a difficult birth. There is no one-size-fits-all approach because every situation is unique, so don’t be pressurised by anyone with their own agenda to agree to arrangements you are not comfortable with.

If you cannot agree on contact, going to court is not necessarily the best option. When every attempt to discuss matters results in an argument and you find yourself going round in circles, mediation may be the answer. This is because it encourages both parties to set aside their differences and focus on what is best for the baby in order to achieve a compromise.

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