What can be included in a pre-nuptial agreement?

Examples of assets a pre-nuptial agreements cover are:

  • Your finances – including pensions, investments and financial support
  • Houses and property – such as your family home, or buy to let investments
  • Your business interests – if you own your own business or shares
  • Valuable possessions – such as cars, antiques and family heirlooms.
  • If you have children, a pre-nuptial agreement sets out how you agree child custody and arrangements should be handled if your relationship later breaks down.

Are pre-nuptial agreements legally enforceable?

A prenuptial agreement which has been prepared in the right way is increasingly likely to be enforced by the family courts. That is not to say they are 100%, but they are often given substantial weight if the correct formalities are used when the pre-nuptial agreement is prepared.

What is legal parenthood?

Under English and Welsh law, a child can only have two legal parents, known as legal parenthood. The individual who gave birth to the child will automatically be the legal parent, regardless of whether they are the biological parent of the child or not. If the individual who gave birth to the child is married or in a civil partnership then their partner will become the other legal parent; unless they do not consent to the treatment that gave rise to the conception.

What is parental responsibility?

It is important to be aware that parental responsibility is a separate issue from legal parenthood. When undertaking treatment, it is important to consider parental responsibility and how to obtain it. Parental responsibility covers the legal rights, responsibilities and authority a parent has for a child, such as making decisions about their care and upbringing.

What does a co-parenting agreement cover?

A co-parenting agreement covers:

  • Who the child will live with
  • Who will have parental responsibility
  • Who will be named on the birth certificate
  • How much contact the child will have with the other parent 
  • Decision making once the child is born e.g. where they will go to school
  • Consent to treatment and storage and what happens if there is a dispute?

How can fertility treatment impact employment rights?

Whilst undergoing fertility treatment, you will not be entitled to statutory time off.  However, the Advisory, Conciliation and Arbitration Service (ACAS) guidance states that employers should treat appointments related to IVF in the same way as any other medical appointment, under the terms and conditions of the contract of employment. If the implantation is successful, you will be entitled to maternity leave, as per your employer’s policy. 

What is a preconception agreement?

A document which sets out how the arrangement will work between your known donor, or co-parent, before you conceive. Please note, a preconception agreement cannot be used in cases of surrogacy, where different rules apply. Preconception agreements are not legally binding, however they are still worthwhile as they can help you plan out some of the more difficult details of the arrangement such as:

  • Who will the child live with and spend time with
  • Who will have financial responsibility
  • Where will the conception take place, at home or at a clinic
  • Set out any issues such as responsibility for schooling or medical decisions
  • Who will be the legal parents of the child after fertility treatment?
Is surrogacy legal in the UK?

It is legal to have a child through a surrogate in England and Wales. However you cannot profit from advertising or arranging a surrogate.  You should not pay someone to be your surrogate, but you may be expected to cover reasonable expenses of the surrogate such as: treatment costs and any loss of earnings.

What are my employment rights as a surrogate or intended parent?

Surrogate mothers will have the right to 52 weeks maternity leave and have the option to return to their job after their maternity leave. Intended parents may have the right to adoption leave or parental leave, but only one parent will be able to take adoption leave. If there are two parents, then the other may be entitled to paternity leave.

Who are the legal parents of a child born through a surrogate?

When the child is born, under English and Welsh law the surrogate will automatically be the legal mother of the child. If the surrogate is married or in a civil partnership, then their partner will be the other parent of the child initially. 

The intended parents will need to apply for a parental order within six months of the child being born, in order to become the legal parents of the child. Married or civil partnership couples are able to apply for a parental order. For single parents the law is a little more complex. 

It can take several months for a parental order to be granted and the intended parents must meet the various criteria which include:

  • Being biologically related to the child (and if a couple, a least one must be child’s biological parent)
  • Have the child living with you
  • Reside permanently in England or Wales.

When the parental order has been granted by the court, the child’s birth certificate will be re-issued with the intended parents recorded as the legal parents. 

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