Can I claim compensation for the post-separation care of our children? – The Ex-Files

Section 18B lets primary carers claim compensation for childcare after separation. Photo / 123rf

Q: My partner and I separated two years ago after a 15-year de facto relationship. We have three children together, aged 4, 6 and 9. We are yet to finalise the division of our relationship property. For the last three years, my former partner has had irregular contact, sometimes going weeks without seeing the children, and when he does, it is only a night at a time. He is paying minimal child support. Can I seek compensation for my post-separation care of our children?

A: If you are shouldering the lion’s share of childcare responsibilities after separation while your former partner provides minimal support, you may be entitled to compensation as part of your relationship property division under the Property (Relationships) Act 1976.

The legal framework: Section 18B Property (Relationships) Act 1976

Section 18B of the Property (Relationships) Act provides a pathway for compensation when one partner makes contributions after separation that would have been considered contributions to the de facto relationship or marriage, had it not ended.

Importantly, the law recognises that indirect actions, such as caring for children while a partner works, contribute to the overall economic position of the couple and therefore care of children is specifically recognised as a contribution to a relationship.

This means that if you have been the primary caregiver since separation – covering costs, providing daily care and maintaining stability for your children – while your former partner has had minimal involvement, you may have grounds for a compensation claim.

How the courts approach these cases

The courts have established principles for assessing post-separation childcare compensation claims. The primary consideration is whether an award would be “just” in the circumstances.

Section 18B is not intended as a substitute for regular maintenance payments. The courts will not use it simply to compensate for inadequate child support.

Instead, it is designed to recognise genuine additional contributions that go beyond what might normally be expected and the impacts that would have on that parent.

These contributions frequently limit that parent’s ability to support themselves financially, they restrict their social life and they limit their ability to form new relationships.

Property (Relationships) Act 1976. Photo / Ministry of Justice

Examples

Recent cases in New Zealand show how these principles work in practice. In one High Court case, a mother who provided 85% of post-separation childcare for two children was awarded $40,000 compensation. The court recognised her direct care contribution and the sacrifice she made to her earning capacity by prioritising the children’s needs.

In another case, which involved six children, a mother who had primary care while the father had limited contact received $20,000 compensation. Significantly, this award was made even though the mother was also occupying the family home, showing that the courts will balance various post-separation contributions when determining what’s just overall.

Practical considerations

When considering a Section 18B claim, courts typically examine the overall post-separation picture. If your former partner is also seeking compensation – for exclusive use of the family home post-separation, for example – the court may offset these claims against each other to reach a fair overall outcome.

The net value of your relationship property pool will also influence any award, as courts consider what amount would still allow for a reasonable and just division of relationship property.

Taking action

If you believe you have grounds for a post-separation care compensation claim, a family lawyer can assess your specific situation, help you document your contributions and advise on the likely success of a claim.

Section 18B provides the court with broad discretion and each case turns on its particular facts. Though the law recognises the value of post-separation childcare, the key question is always whether compensation is just in your specific circumstances.

For parents in similar situations, know that the law does recognise the significant contribution you make when you take primary responsibility for your children after separation. Though it is not automatic compensation, Section 18B can provide a valuable avenue to seek recognition for the financial and personal sacrifices involved in taking on this role.

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