Nowadays it is becoming increasingly common for couples, even with children, to decide not to go through the altar, without this meaning that they are unprotected by the regulations in case they separate and have to decide on the custody of the children.
That is why it is important to know the child custody rules when there is no marriage.
If in case of divorce or
divorce or legal separation, the preparation of a regulatory agreement in which the custody measures are specified (being the legal instrument used the divorce or separation lawsuit), in the absence of marriage, an alternative legal instrument is used for the same purpose. However, in both cases the rules of the game when deciding the concrete measures on custody and guardianship are the same and revolve in all cases around the best interests of the child. If you need legal assistance to establish measures in an unmarried couple (there are common-law relationship or not), contact our Family Law attorneys.
Child custody when there is no marriage: these are the rules
A very frequent doubt among those parents who are neither married nor have formalized their union as a common-law couple is what happens in case the cohabitation ceases and it is necessary to decide who gets to keep the children.
The truth is that non-formalized couples (and their children) have the same guarantees in this sense, although it is necessary to go to a different legal channel: the so-called judicial procedure of paternal-filial measures. Thanks to this procedure, the consequences of this termination of cohabitation for the children can be regulated in detail, following the same rules on custody that are applied in the case of ‘formal’ couples.
In fact, it is entirely logical that this should be the case: the rights of the children do not vary depending on whether they are the result of a marital or extramarital relationship, and they are always placed at the top when a breakup occurs.
The principle of the best interests of the child will reign in all decisions taken regarding their custody and guardianship, and judges will therefore apply the same rules of protection as when there is a marriage or common-law relationship.
Going deeper into the procedure of paternal-filial measures, it is possible that the parties involved (i.e. the parents) reach an agreement and submit to the judge a proposal of measures (regulatory agreement).
This would be what we call the amicable way. In this way, the judge will only have to validate the agreement (as long as it complies with the law) and the procedure will be faster.
This is undoubtedly the best way, since you will be able to design a solution tailored to your needs, with the help of a single lawyer, the result of consensus and dialogue.
It is also a good first precedent for your future relationship: it is much more exemplary for the children that decisions concerning them are made in a cordial and respectful manner, and you will also rest easier, avoiding unnecessary conflicts.
If an amicable agreement is impossible, then you will have to resort to litigation, which has the same disadvantages as a contentious divorce or separation.
In these cases, in the absence of agreement, each party will present its proposal and it will be the judge who will make the final decision regarding the custody and custody of children and exercise of parental authority, visitation, communication and stay, alimony and use of the family home.
In addition, in this case two lawyers will be necessary (one for each party), making the process more expensive and slowing down the solution that, in addition, could not leave any of the members of the couple or the children themselves satisfied.
Finally, do not forget that the alimony in favor of the children is also possible when there is no formalization of the couple.
The duties inherent in parental authority have nothing to do with the formalization or not of the relationship between the parents, but with the fact of being a parent of the child.
Therefore, it is possible (and necessary) to adopt economic measures to protect the children and ensure their welfare, including, if necessary, alimony.
This is the content that you will have to negotiate in the agreement, as a minimum:
- Type of custody of the children (the trend is shared custody).
- Communication and stay regime.
- Visitation and communication of the grandchildren with the grandparents.
- Allocation of the use of the dwelling and family trousseau.
- Alimony.
- Alimony for the couple.
- Liquidation of common assets.
Remember that we are specialists in regulatory agreement, both in married couples and in unmarried couples.
