What You Need to Know About Separation or Divorce During Pregnancy

When a relationship breaks down, it can be a very distressing time for everyone involved. Separation or divorce during pregnancy is particularly difficult. As well as dealing with the trauma associated with the end of your relationship and navigating the legal and practical issues that follow, you have the added stress of dealing with your own health and wellbeing, as well as that of your unborn child.

We share what you will need to consider when going through a separation or divorce during pregnancy.

What are the Father’s obligations when you separate or divorce during pregnancy?

Your former partner may be subject to certain financial obligations to you following your separation. We summarise those potential obligations as follows:

Childbirth Maintenance

Section 67B of the Family Law Act 1975 provides for a father to be liable to make a proper contribution towards the maintenance of the mother for the childbirth maintenance period and the mother’s reasonable medical expenses in relation to the pregnancy and birth. This contribution will occur only in circumstances where the mother does not qualify for spousal maintenance given she is not married to or living with the father of the child prior to the child being born.

The father is liable to make a contribution towards:

  • The maintenance of the mother for the childbirth maintenance period in relation to the birth of the child; and
  • The mother’s reasonable medical expenses in relation to the pregnancy and birth;

Duration of Childbirth maintenance

Childbirth maintenance does not extend for the entire pregnancy; the father is liable to make a “proper contribution” from two months before a child is born, up until three months after. However, if a mother is advised to stop working by a medical practitioner early in the pregnancy for medical reasons related to her pregnancy, the period of childbirth maintenance commences on the day she stops working.

In the event that the mother or the baby dies during childbirth, the father is also expected to make a proper contribution towards any funeral expenses.

In determining the contribution that should be made by the father of the child, the Court is required to take the following matters into consideration:

  • the income, earning capacity, property and financial resources of the mother and the father;
  • commitments of each of those persons that are necessary to enable the person to support himself or herself or any other child or another person that the person has a duty to maintain;
  • any special circumstances of the person which, if not taken into account, would result in injustice or undue hardship to any person

Time Periods

If you are experiencing a separation or divorce during pregnancy, be mindful of the time periods allowed for making an application. You will need to make an application for childbirth maintenance within 12 months of the child being born.

If you do not apply within the 12 month period following the birth of the child, you may apply to the Court to accept your application for childbirth maintenance being made out of time on the basis that failure to accept your application would result in financial hardship to you and your child.

Spousal Maintenance

Section 75 of the Family Law Act 1975 provides for a spouse party (married or de facto) to make a claim for spousal maintenance,

A claim for spousal maintenance can be made in circumstances where you and your partner:

  1. are, or have been, validly married; or
  2. have lived together as a de facto couple for a period of at least 2 years;

If you and your partner have not lived together for a period of at least 2 years, you may be eligible to receive spousal maintenance in circumstances where:

  1. you and you partner are parents to a child under the age of 18 years of age (noting that an unborn child is not included under the definition of a child for the purpose of this provision); or
  2. you, have made significant financial or non-financial contributions to the relationship that without the intervention of the Court would result in a significant injustice to you.

The Court will consider the needs of both applicants, and the ability of the ex spouse to pay. For more information about spousal maintenance, you can read how spousal maintenance is calculated here.

Child Support

Child support is payable by one or both parents in respect of the costs associated with caring for a child of that relationship.

The obligation for a parent to pay child support commences once the child is born and extends until the child reaches the age of 18 years.

In some cases, a parent may be liable to pay adult child support in circumstances where the child has reached the age of 18 years, and:

  • is completing their secondary or tertiary education;
  • has a serious illness;
  • has a physical or mental disability

An application for adult child maintenance can be made by a parent or the child himself provided the child has reached the age of 18 (or the application is made when the child is 17 but provides for maintenance to commence once he turns 18 years). Maintenance can be claimed in respect of the adult child’s costs associated with:

  • living expenses including food, household supplies, utilities, housing and transport;
  • his/ her education;
  • his/her medical expenses.

Parents can enter into private agreements about child support or apply to the Department of Human Services (Child Support) (DHS) for an administrative assessment.

An administrative assessment will be done once it is established that the parent liable to pay child support is the biological, adoptive or same-sex parent of the child the subject of the assessment application.

We answer more questions about child support here.

Can the Father of an Unborn Child Prevent a Pregnant Woman From Relocating?

The is no provision within the Act which provides the Court with power to make orders in respect of an unborn child. Consequently, the father of an unborn child will not be able to prevent a woman from relocating while she is pregnant.

Once a child is born, that child has rights and the rights of that child may impact the mother’s ability to relocate. The rights of the child include the right to be protected from harm and the right to have a meaningful relationship with both of their parents.

A parent who wishes to relocate with their child may need to ensure that appropriate arrangements are made to facilitate the child having a meaningful relationship with the other parent.

The parent who is not relocating may apply to the Family Courts in respect of parenting arrangements if an appropriate agreement cannot be reached between the parents which will enable the child to spend time with and develop a relationship with the parent who is not relocating.

When Can You Commence Proceedings for Parenting Orders?

The Act provides that a parent of a child may apply to the Family Courts for determination of parenting arrangements. Parenting arrangements may be finalised by way of a Parenting Order which is a legally binding order made by the Court in respect of parenting arrangements for a child / children of a relationship.

A fetus or unborn child is not included in the definition of a “child’ under the Act. Consequently, the Family Courts do not have power to make any Orders regarding an unborn child and as such, an application in respect of parenting arrangements can only be made once a child is born.

Parenting orders can be made by consent (consent orders), between the parties or by determination of the Court in circumstances where parents are not able to reach agreement in relation to the arrangements to be made in respect of the children.

Going Through Separation or Divorce During Pregnancy and Need Advice?

If you are separating from your de facto or married partner, Pullos Lawyers can help. Our team of experienced family lawyers can help you navigate this emotionally difficult and complex time in your life with compassion for, and understanding of, the anxiety you may be experiencing as a result of your separation The team at Pullos Lawyers can also assist with a range of matters including De Facto & Same Sex Law, Spousal Maintenance, and International Family Law. Please get in touch via email, or call us in our Gold Coast office on (07) 5526 3646, or our Brisbane office on (07) 3144 1641.