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The Parent Trap: Married v Unmarried Parents

November 8, 2021 Wills, Executry & Probate

In today’s 21 century, the nature and structure of families are continually changing. Only 20 years ago, a child born out of wedlock was considered ‘illegitimate’. However, since the amendment of the Law Reform (Parent and Child) Scotland Act 1986, the term ‘illegitimate’ and the associated stigma has been removed from Scots law. Now, families with non-married cohabitating parents are in the fastest growing family type, with an increase of over two million in the last decade alone. This trend can be attributed largely to couples who cohabit as a precursor to marriage, as well as those who cohabit and never marry. Such changes to the family dynamics, raises the key question: ‘Do married and unmarried parents have the same legal rights under the law in Scotland?’

Parental rights and responsibilities (PRRs) are exercised on a daily basis by millions of parents, without much thought or recognition. Such rights and responsibilities include, but are not limited to, safeguarding and promoting a child’s health, welfare and development, as well as providing financial support. For the mother of a child, their marital status bears no impact upon their parental rights and responsibilities. Contrastingly, the legal position of fathers or second parents in a same-sex relationship is highly dependent upon whether they are married or not.

If the parents of a child are married at the time of birth, a father or second parent automatically acquires parental rights and responsibilities to their child. For unmarried fathers and second parents, the Family Law (Scotland) Act 2006 has vital standing, by introducing the remedy of the child’s birth certificate. For children born on or after 4 May 2006, a parent gains automatic parental rights and responsibilities, equal to that of the child’s mother, upon signing and registering the birth certificate.

Where neither of the above circumstances apply, all is not lost, as there are a further two ways in which a parent can acquire Parental Rights and Responsibilities. Firstly, where a mother has all of her parental rights and responsibilities, both parents may enter into a formal agreement, known as a Parental Responsibility Agreement. This Agreement shall allow the biological father of the child to obtain the responsibilities and rights detailed in the Children (Scotland) Act 1995. To ensure the agreement is enforceable and effective, this must be in the form prescribed by legislation and registered in the Books of Council and Session. Once this agreement is registered, it becomes irrevocable except by a court order.

Finally, a father can apply to a Scottish Sheriff Court for an order giving him parental rights and responsibilities. This application would be under section 11 of the Children (Scotland) Act 1995, which allows a father the title to do so as a person who ‘not having and never having had, parental responsibilities and rights in relation to the child, claims an interest’. Genetic and/or emotional ties towards a child tend to be sufficient to constitute an interest. However, when granting an order, the welfare of the child is the paramount consideration and as such the court will only grant parental rights and responsibilities if it is in the child’s best interests.

There is often a presumption that a child should be given the surname of their father. However, for unmarried parents this is not always practical. As with any decision involving a child, the decision to register or change a child’s name should be made with the best interests of the child at heart.  When changing a child’s name, either by recording at the National Records of Scotland or by Statutory Declaration, the parent must have the permission of the other parent if the other parent holds parental responsibilities and rights for that child. If the parent has sole parental responsibilities and rights for that child, then they do not need to get permission from the other parent.

If there is a dispute regarding a child’s name between two parents, who both have parental rights and responsibilities, then an application may be made to the court for permission to either register or change the child’s name. If a name is changed unilaterally then the parent who does not consent can apply to the court for an order requiring the name to be changed back. All of this may incur significant costs and could potentially be both confusing and upsetting for the child involved.  It is therefore essential you seek advice about changing the child’s name before trying to do anything yourself.

In Scotland, children, including those who have been adopted and those born or conceived outside of marriage, cannot be completely disinherited by their parents. For moral and social reasons, the law has always provided children of a deceased with a basic level of protection, so that even if a child is not mentioned as a beneficiary in the will of a parent, the child still has a right to claim on the estate, which takes precedence over the terms of the will. This is known as the child’s entitlement to legal rights.

When a child claims legal rights they are entitled to receive from the executor a break-down of the deceased’s estate, and a calculation of how their legal rights have been calculated and divided. Such legal rights can be very significant in value depending on the size of the estate. Furthermore, a child has 20 years from the date of death of the parent to claim, and this time limit does not commence until the child reaches the age of 18 years.

For information and advice on any related matter, please contact our New Business Team by telephone on or by completing our , to arrange an initial consultation with our specialist divorce and child solicitors.

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