Separation when pregnant

Separating when one party is pregnant presents some interesting legal and practical issues. What are the Father’s obligations? Can you commence proceedings for parenting orders? Can you stop the pregnant woman from relocating elsewhere? Who pays the medical costs?

Spousal maintenance

To apply for spousal maintenance, you must first be in a position to invoke the jurisdiction of the Family Court. That means that your relationship has to fall into one of the following categories:

  1. You must be (or have been) validly married;

  2. Must have lived together as a de facto couple for 2 years; or

  3. If you have not lived together for 2 years, you must “tick” one of the following boxes:

    1. You must have a child under the age of 18 together (*the unborn child is not included for the purpose of this test); or

    2. The person applying must have made significant financial or non-financial contributions that would result in a significant injustice without the Court’s involvement.

Unless your case fits into one of the above categories, you cannot apply for spousal maintenance.

If you are eligible to apply for spousal maintenance, the Court looks at two things:

1. Your need for financial assistance (looking at your income capacity and expenditure); and

2. The other party must have the capacity to pay.

Please contact us if you would like more detailed advice in relation to spousal maintenance.

Birthing/medical expenses

If you do not qualify for maintenance, and the parents were not married, there is provision for the Mother to be provided with childbirth maintenance. The child birth maintenance period is relevant only if the Mother is working in paid employment, and starts 2 months prior to the baby’s birth (unless the Mother has to stop working earlier in accordance with medical advice) and continues until the baby is 3 months old.

The Father is also liable to make a “proper contribution” towards the Mother’s reasonable medical expenses and, on a sadder note, to any funeral expenses if either the Mother or the child should die as a result of the birth.

The assessment of “proper contribution” is a subjective test, and will depend on the circumstances of each case.

Relocation

A parent (or other related party) may only apply for parenting orders once the child is born. Relocation matters invariably fall within the Court’s parenting jurisdiction. So can a pregnant woman leave the town/city/state/country prior to the child’s birth? The short answer, if there are no other children involved, is yes. Once the child is born, the other parent can apply to the Court to spend time with the child, but relocation itself is not necessarily an element of that case.