What happens when LGBTQ+ couples divorce? Parenting, finances and your rights explained

Divorce is rarely simple. But for an LGBTQ+ couple, it can come with a few extra layers that aren’t always obvious at first, as Joe Ferguson, Associate Solicitor at Myerson Solicitors, specialising in family law solutions for LGBTQ+ individuals, writes for PinkNews.

Legally, things have come a long way in a short time. Civil partnerships were introduced in 2004, and same-sex marriage was only legalised in England and Wales in 2013. That means many couples were together for years, sometimes decades, before their relationships were formally recognised in law.

Today, the process of divorce is the same regardless of who you are, thanks to a change in the law as recent as 2022. However, when you look a little closer, particularly at children, finances and how modern families are structured, things can feel more complicated than the law might suggest. 

So, is divorce different for LGBTQ+ couples?

In strict legal terms, no. LGBTQ+ couples have the same rights as heterosexual couples when it comes to divorce, and the introduction of no-fault divorce under the Divorce, Dissolution and Separation Act 2020 has ensured that divorce can be less acrimonious than under the previous system. 

Now, one or both of you simply confirm that the marriage has irretrievably broken down. After a minimum 20-week reflection period, a conditional order can be granted, followed by a final order which legally ends the marriage. The process can be concluded in as little as seven months. 

The same applies to civil partnerships. The dissolution process works in much the same way as divorce, and if a civil partnership has been converted into a marriage, the divorce procedure is exactly the same.

The system is designed to reduce conflict. But while the process itself is consistent, the reality around it and the acrimony that can ensue will vary depending on your relationship and family set-up.

When children are involved, things can become more complex

If you have children, the law is clear that their welfare comes first. The court’s priority is always what’s in the child’s best interests, not the parents’.

If you’re not able to agree arrangements between you, the court can make a Child Arrangements Order. This sets out where a child lives and how much time they spend with each parent.

For LGBTQ+ families, though, an added issue can be legal parenthood, which is the legal status of being a parent and the rights and entitlements that come with that.

The birth mother will, as a point of law, always have parental responsibility in the first instance. This means that if your child was born through surrogacy, for instance, your legal status as a parent may require the intervention of the court. 

Moreover, LGBTQ+ couples may undertake donor conception. Again, parenthood will be a question of law and will depend on the case specifics, like whether the child was conceived at a licensed fertility clinic at the UK, whether consent forms have been signed and whether you are married. If your legal parenthood hasn’t been clearly established, that can affect your ability to make decisions or apply to the court without permission. In some cases, therefore, further steps may be needed to secure parental responsibility or formalise arrangements.

What happens to finances after a break-up?

As with divorce itself, same-sex couples are entitled to the same financial remedies as opposite-sex couples if married or in a civil partnership.

Financial settlements are governed by section 25 of the Matrimonial Causes Act 1973. This means the court considers a range of factors, including your income, earning capacity, financial needs, the standard of living during the marriage and the contributions each of you has made.

There’s no fixed formula, but the starting point is fairness, dictated in the first instance by your needs. The court has wide powers and can order things like lump sum payments, spousal maintenance, the transfer or sale of property, and pension sharing.

Where possible, the aim is to reach a clean break. That means putting a financial agreement in place so neither of you can make future claims against the other.

For LGBTQ+ couples, timing can sometimes add a layer of complexity. Because same-sex marriage has only been legally recognised in recent years, you may have built up assets long before you were able to marry. While the court can take the wider relationship into account, questions can arise about how those earlier assets should be treated. Cohabitation can be taken into account when one considers the length of a marriage, and this is often not known to couples. 

What if you weren’t married or in a civil partnership?

If you are not married or in a civil partnership, the legal position is very different.

You don’t have access to the same financial claims as divorcing couples. Instead, disputes tend to be dealt with under property and trust law, most commonly the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). That focuses on ownership and intention, rather than what might feel fair.

In practical terms, that means even if you’ve been together for a long time, your rights may be limited, especially if assets are in one person’s name. For LGBTQ+ couples who were together before marriage was an option, this can be particularly significant.

Why LGBTQ+ separations can still feel more complicated

Even with legal equality in place, LGBTQ+ relationships don’t always fit neatly into traditional legal frameworks. Families might involve donor or surrogacy arrangements, shared parenting in different forms, or roles that were never formally documented. There may be a rejection of the heteronormative ideals of marriage and the nuclear family, upon which family law is founded and generally considered. 

That does not mean the law can’t deal with these situations. Indeed, the family courts are well-versed at assisting LGBTQ+ families. However, it does mean that the starting point is not always straightforward.

If you are going through a separation, getting clarity early on can make a real difference. Understanding your legal position, especially regarding parental responsibility and financial claims, can help you avoid uncertainty later and make more confident decisions from the outset, avoiding conflict and seeking early resolution often outside of the court arena. This can mean an outcome that you and your ex-partner are both happy with, which accords with what is in the best interests of you both and any family you may have. 

The bottom line

Equality in family law has removed a lot of the barriers for LGBTQ+ couples, but it hasn’t erased the complexities that can come with LGBTQ+ relationships and family life generally.

When those relationships break down, the details matter. And knowing your rights isn’t just helpful, it can shape what happens next.

Share your thoughts! Let us know in the comments below, and remember to keep the conversation respectful.