Divorcing before the child has been born

It can be a very upsetting time when a relationship breaks down, and separating during pregnancy is particularly difficult. As well as dealing with the fallout from the end of the marriage or civil partnership, and navigating the practical and legal issues, there is the added stress of dealing with a pregnancy. But what do you need to consider in such circumstances? Here, we look at the law surrounding divorcing before a child has been born.

If you have concerns about your situation and you feel you need legal advice, contact specialist family lawyer Helen Miller of Stowe Family Law. She is an exceptionally skilled family law expert with over 20 years’ experience, and Managing Partner at this well known specialist family law firm.

What are the rights of the mother before birth?

While the mother is pregnant, regardless of whether the parties are married or separated, the mother does not have to involve the father in decisions relating to:

• Receiving medical treatment
• Travelling abroad
• Terminating the pregnancy

In addition, the father cannot do any of the following without the mother’s consent:

• Access or view the mother’s medical records
• Attend medical appointments with the mother, even those that relate to the pregnancy, such as scans
• Be present at the birth or notified of the birth
• Visit the mother and baby in hospital after giving birth

Will a father automatically obtain parental responsibility if he is divorced when the baby is born?

A father who is married to, or the civil partner of the child’s mother when the child is born, will automatically have parental responsibility. In these cases, parental responsibility is not lost if the parties subsequently divorce. However, the position is different for divorced fathers who are not married to, or in a civil partnership with, the mother, because they do not automatically obtain parental responsibility and therefore hold the same legal position as an unmarried father.

In these cases, a divorced father can obtain parental responsibility by being present at the registration of the child’s birth alongside the mother. Other ways to obtain parental responsibility include entering into a parental responsibility agreement with the mother, obtaining parental responsibility from the court, or being named as a resident parent under the terms of a Child Arrangements Order.

Will I have to financially support my pregnant wife if we divorce?

The Matrimonial Causes Act 1973, governing financial matters in divorce, empowers courts to order maintenance or support payments to ensure the pregnant spouse’s basic needs are met during this critical phase. Needs are measured by:

• Assessing available financial resources
• Stretching finite resources where they are modest
• Assessing the standards of living during the relationship

The fact of the birth of the child, or anticipated birth, can lead to additional financial obligations in a divorce settlement.

Will the absent parent still have to pay child maintenance for the baby even though we divorced?

Divorce at any time does not wipe out a parent’s legal obligation to financially support their child, and there will still be liabilities for the child’s upkeep. The amount of child maintenance that an absent parent will pay depends on how much they earn and various other factors. On basic rates, if they are only paying for one child, then 12% of their gross weekly income will be taken. For two children the rate is 16%,  and for three children or more it is 19% of gross weekly income.

If you cannot agree on the amount of child maintenance between you, the Child Maintenance Service (CMS) will calculate this for you, although this is not automatic, and you will have to make an application direct.  They will take into account how many children you have, the income of the paying parent, how much time they spend with the absent parent and whether they are paying maintenance for any other children.