Will custody of children soon also be automatically arranged for unmarried couples?

The Recognition and Authority Bill of D66 and the VVD was adopted by the House of Representatives on 24 November 2020. The law ensures that the unmarried partner of the mother automatically receives parental authority if he or she acknowledges the child. This eliminates the distinction between married and unmarried parents.

WHAT DOES RECOGNITION AND AUTHORITY MEAN?

Legal parenthood is created by recognition. This means that a family law relationship and maintenance obligation are created. In addition, the child and the parent become heirs to each other.

Parental authority creates the right and duty to care for and raise the child, the authority to represent the child and the ability to manage the child's assets. With authority, the parent can, among other things, choose a school for the child, give permission for medical treatment, open a bank account or apply for a passport.

CURRENT ARRANGEMENT

A child automatically enters into a family law relationship with the mother through birth, regardless of the relationship the mother has. She also automatically has parental authority. If the mother is married or has entered into a registered partnership, the partner is also automatically the legal parent and automatically receives parental authority. However, if the mother is not married or has entered into a registered partnership, the partner must both acknowledge the child and apply for parental authority at the court.

Of all children born outside of marriage or registered partnership, in ninety percent of these cases the child is acknowledged by the other parent. However, for a quarter of this group of children - for various reasons - authority is not requested at the same time. Some do not want joint authority, others simply forget.

However, the lack of joint parental authority can cause problems in the event of divorce or death of the mother, as the partner cannot perform the aforementioned rights and duties. Authority can then become part of the conflict and, if necessary, must be fought out through legal proceedings.

In the event of death, the authority is assigned by the judge to the surviving parent or a third party. Despite the fact that the surviving parent is in principle preferred in this case - even when a guardian has been appointed in a will - the procedure is time-consuming and expensive.

RECOGNITION AND AUTHORITY ACT

Due to the increasing number of unmarried couples, half of all children – 75,000 per year – are born outside of marriage or a registered partnership. As a result, potential problems due to a lack of authority can occur for a large group of children and parents. The new law reduces this risk by regulating that joint authority automatically arises upon recognition – with a few exceptions. If the child is recognised during pregnancy, the authority for the partner will commence on the day of birth. If parents do not want joint authority, they can declare to the municipality in mutual consultation that they will waive equal authority.

This bill therefore reverses the main rule: no "no, unless", but "yes, unless". This introduces four important improvements compared to the current legal arrangement:

• Removing the unjustified distinction between (children born of) married parents on the one hand and (of) unmarried parents on the other hand with regard to the exercise of authority;
• To amend the Civil Code in such a way that its provisions better reflect current social expectations;
• Removing the problems caused by current regulations;
• Better safeguarding the interests of the child.

The Senate will still consider the law before it can enter into force. This will be on 1 July 2021 at the earliest. It is important to note that the automatic entry into joint authority after recognition will only apply to children who are recognised after the amendment to the law has been introduced. If the partner has recognised the unborn child before the amendment to the law has entered into force, he will not automatically receive authority.

CRITICISM OF THE LAW

The bill has been criticised from various quarters. For example, it has been suggested that better information should have been attempted first and it has been argued that linking authority to recognition can form a barrier for the mother to give permission for recognition. While recognition is of great importance to the child.

Another point of criticism is that taking responsibility for the care and upbringing of a child should be a conscious choice. In line with this is the objection that unmarried society with this legislation will resemble marriage too much.

CONCLUSION

Authority has more than an emotional value, the parent can make important decisions through authority and thus fully assume the role of parent of the child. In the case of married and registered partners, legal parenthood and authority are automatically arranged. In contrast, the unmarried partner of the mother must acknowledge the child and apply for authority. If the latter is not done, problems can arise in the event of divorce or death of the mother. The bill - by automatically assigning authority upon acknowledgement - makes the legal position of unmarried parents equal to that of married parents. This is in line with the social reality and the family of today.

Would you like to know more about recognizing or applying for authority? Or would you like to have the recognition or authority judicially established or undone? Then contact contact with our office. We will be happy to assist you.