Death of an unmarried parent

The death of a child’s parent is always tragic, and in some cases has unexpected legal consequences for the child’s birth certificate.

I was on Radio 4 recently, discussing the case of an unmarried father who died unexpectedly before his child was born. The legal difficulties arose when the mother attempted to register the birth but discovered she couldn’t register the father’s name because they were not married.

Currently, either married parent can register both the mother’s and father’s names
on the birth certificate because there is a legal presumption that their spouse is the parent, even if they are not present at the registration. However, if the couple are not married, the unmarried partner must either be present to sign the birth certificate or complete a statutory declaration of parentage.

While the case in question may be regarded as relatively rare, and the occurrence of such circumstances appear applicable to only a small number of couples, it’s worth noting
that cohabiting couples are
the fastest growing family type
in the UK, having grown by
29.7 per cent in the last ten
years. Consider that figure in conjunction with the fact that nearly 40 per cent of the current UK population is between the ages of 15 and 44, and therefore most likely to be of child-bearing age, making similar circumstances more possible.

If one unmarried parent passes away before the child is registered, section 55A of the Family Law Act 1986 currently applies. This requires an application to the Family Court for a declaration of parentage, which can be a complicated process for the remaining parent, with financial costs they may not be able to afford, especially since the abolition of legal aid in 2013.

When the unmarried parents are both alive, a statutory declaration is sufficient to register their parenthood.
So, the question remains, in
a post-legal aid environment, when only one parent survives beyond the birth of the child but they can prove the child’s relationship to the deceased parent with DNA evidence, why do they have to go through
a costly court process?

In light of the substantial rise in cohabitation, it’s perhaps time we sought other solutions. For example, given that it’s been mooted by the president of the Family Division that divorce can be administrative in aiding litigants without lawyers, why can’t registrars have the power to issue a birth certificate in these rare circumstances of unmarried parental death prior to birth, so long as the remaining parent complies with the registrar’s directions, such as to provide the DNA test and supporting sworn statements from family members?

In order to avoid fraud, the registrar could have the power to refuse to issue an order and remit the matter to the Family Court. Then, the applicant would have to apply under section 55A in the normal way.

The makeup of our society
has changed dramatically since 1986, and the probability of similar cases has increased substantially. While the reinstatement of legal aid would help unmarried couples going through the current process, given that this is unlikely,
a relatively straightforward administrative solution to this problem seems well overdue. SJ

Marilyn Stowe is senior partner at Stowe Family Law

@marilynstowe