Ask the Lawyer: What maternity rights do my partner and I have when we have our baby?

PinkNews brings you the latest in a series of features which sees your real questions answered by leading lawyers at Simpson Millar.

The question comes from a lesbian couple who are unsure of their maternity rights if they have a baby.

She asks: “I am a woman in a same-sex relationship. Me and my partner want to have a baby but we are unsure of what we are entitled to in terms of maternity leave. My partner is carrying the baby but I want to be able to take some time off too. Can you advise what our rights are?”

Ask the Lawyer: What maternity rights do my partner and I have when we have our baby?

A Simpson Millar lawyer answers, saying: “Nowadays, there are many more options available to working parents in terms of the leave that they can take to spend time with and/or prepare for the birth/placement of a child.
The good news is that the options available to same-sex couples in terms of child-related leave are the same as those available for heterosexual couples.

“Your employer should have family leave policies, which set out the rights and procedures in respect of: adoption, maternity, paternity and shared parental leave. But, it may not be explained in these policies that these rights and procedures also apply to same-sex couples.
Having a child is meant to be one of the happiest times of your life and should not be overshadowed by the worry of whether your sexuality impacts on your rights in terms of taking time off work.

“Here are some tips on the rights that may apply to yourself and your partner:

“Paternity leave may apply to you, as a non-birth mother. There is often a misconception that paternity is only available for fathers, but this is not correct. In order to be entitled to paternity leave, you must be an employee and have worked for your employer for at least 26 continuous weeks, by the end of the 15th week prior to your baby’s due date. In addition, you must comply with the relevant notice requirements in communicating your position to your employer.

“If you do qualify for paternity leave, you will be entitled to take 1 or 2 weeks off. Some employers allow their employees to take more time off, so it’s worth discussing this with your HR department.

“Unless your employer provides for company paternity pay, you would receive statutory paternity pay which is currently set at £139.58 per week or 90% of your weekly earnings (whichever is lower).

“You may, subject to your partner’s decision regarding leave from work, be able to opt to share your partner’s maternity leave. If your partner would like to take less than 1 year off work on maternity leave, you may be able to take an element of her leave as shared parental leave.

“The entitlements and procedure for opting into shared parental leave are fairly complex. If you do believe you would like to take more than 1 or 2 weeks paternity leave off work or want some more information, please get in touch with one of Simpson Millar’s Employment Law solicitors on 0800 260 5005 or click here to request a call-back.

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