The Nature of Family Law

 The Concept of Family Law

 Function: care and protection of its members
 Law: families are financially secure and care for their children
 S51 (xxi and xxii) of Aus Constitution: federal government has power and authority to
make laws governing marriage and divorce
 The Marriage Act 1961 (Cth): establishes legal requirements of valid marriage
 Family Law Act 1975 (Cth): sets out legal duties and obligations that a marriage
creates
 July 2010: de facto couples able to apply to Family Court to settle property disputes
 WA: have a separate Family Court which deals with state and federal family law
issues → family law focuses more on conciliation and encouraging compliance
instead of sanctions or coercion to enforce compliance 
 Legal Requirements of Marriage
 People being married must know the legal consequences of Marriage
 Two people marry: they make a promise in front of witnesses to provide and care for
one another
The Legal Definition of Marriage
 Found in Hyde v Hyde and Woodmansee (1866): Lord Penzance stated ‘marriage is
the voluntary union for life of one man and one woman, to the exclusion of all others’
 Marriage must be voluntary otherwise it isn’t legally binding
 Marriage is for life, unless divorce is undertaken
 Parties must be of different sexes
 ‘to the exclusion of all others’: meaning marriage is between two people only. Unlike
other cultures where having more than one spouse is allowed
Requirements for a Valid Marriage
Gender
 S 5(1) Marriage Amendment Act 2004 (Cth): defines marriage as ‘union for life of one
man and one woman, to the exclusion of all others’
 S 88EA: same-sex marriage performed in another country is not counted in Australia
Marriageable Age
 S11 Marriage Act 1961 (Cth): person can marry from age of 18, no person under 16
can marry
 If wanting to marry between 16 and 18: must apply to judge/magistrate for an order
for marriage. Order only granted in circumstances that are sufficiently ‘exceptional
and unusual’
Prohibited Relationships
 Person cannot marry someone who is closely related through blood or by marriage
(brother, sister, ancestor). Applies to half-siblings, adopted siblings
 Person can marry their uncle/aunt, niece or nephew
Notice of Marriage
 Couple intending to marry: must complete ‘Notice of Intended Marriage’ form and
give it to authorised marriage celebrant
 Marriage celebrant: must conduct the marriage, no earlier than 18 months before
marriage, no later than one month and one day before it
 Notice must be in writing and signed by both parties
 Parties must prove they are of age through e.g. birth certificates
Requirements for a Valid Marriage
 Witnesses must be over 18, and must be two witnesses
 Celebrant must issue marriage certificate after ceremony is completed: proof that
marriage is legal according to law
 Celebrant usually provides 3 copies of marriage certificate 
 Celebrant, husband, wife and two witnesses must sign all copies of the marriage
certificate
  One copy must be lodged to Registry of Births, Deaths and Marriages within 14 days
after the marriage
Void Marriages
 If marriage doesn’t meet the definition of marriage (parties are of same sex, consent
not freely given), it is an invalid or void marriage
 Marriage is also void if: any party are not of age or they are too closely related
 Court can nullify (legally declared as invalid) a marriage, annulling (declaration by
court that marriage is void): marriage never taken place as it wasn’t legal
 Children born during marriage: seen as legitimate children of the marriage
 Alternative Family Relationships
Aboriginal and Torres Strait Islander peoples’ customary law marriages
 Bound by traditions, enforced through customary law
 Customary law marriages: do not comply with requirements of Marriage Act 1961
(Cth): generally arranged marriages
 Customary law marriages: not legally recorded or registered with authorities 
 Law: doesn’t recognise customary law marriages having legal standing
 1986 - Australian Law Reform Commission report: recommended traditional
marriages of Indigenous Australians should be recognised and given legal status so
that it: ensures legitimacy of children of those relationships, protect the right of
inheritance if one of the partners die 
 1995: federal government’s response: implementation in state and territory law
however, Indigenous children are provided in s61F Family Law Act 1975 (Cth): courts
decisions must take into account kinship and Indigenous culture of the child
 Ex-nuptial (outside marriage) and nuptial (in marriage) children protected under:
Family Law Act 1975 (Cth) 
 Family Court can determine parenting orders including: maintenance arrangements if
customary marriage is broken
 Orders based on what is best for child, ensuring they are connected with Indigenous
culture and traditions
Single Parent Families
 ABS: 2012-13 from 6.7 million families, 15% were single parent families → mainly
single mother families
 Increase in divorce due to social issues confronting single parents, and high cost of
going to Court making single parents not doing so
 Child Support Scheme: introduced to enforce maintenance orders on parents who
don’t reside with their children
 Child Support (Registration and Collection) Act 1988 (Cth): shifted enforcement of
child support from courts to an administrative system
Blended Families
 According to ABS approx. 70% of families were blended
 Married or de facto couple with children from previous relation whom become
stepchildren
 Law treats spouses in blended family according to marital status 
 Stepfather/mother not legally responsible for children or have same right of discipline
as legal/natural parents
 Step wanting to adopt must apply to Family Court and must have been living with
child at least 5 years old for 2 years under Adoption Act 2000 (NSW)
 Family Law Act 2006 (NSW): step child can provide they were financially dependent
on step parent to claim estate
De Facto Relationships
 S4AA Family Law Act 1975 (Cth): partners which are not married to each other by
law, not related by family, living together on a basis as a couple
 ABS 2013: 76% couples who marry have lived together prior to marriage
Same Sex Marriages
  Same Sex in Australian cannot marry each other
 Aus law has changed overtime to meet society’s needs 
 Has de-facto status → long task, took long time
State Legislation
 Property (Relationships) Act 1984 (NSW): same sex relationships have the same
legal standing as heterosexual de facto relationships 
 Section 4 Property (Relationships) Act 1984 (NSW) defines de facto relationships as:
relationship between two adults who live together as a couple, and who are not
married to one another or related by family
Federal Legislation
 Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008
(Cth): governs property settlements and maintenance orders for de facto couples
who are separating 
 S4AA(5) Family Law Act 1975 (Cth) March 2010: de facto relationship exists
between same or different sexes → now governs property settlements for same sex
couples
 S18 Evidence Act 1995 (Cth): de facto partner can’t give be forced to give evidence
against their partner in certain criminal proceedings
 2007: 84 Cth legislations were amended to eliminate differential treatments of same
sex couples such as tax, Medicare, superannuation
 Marriage Equality Amendment Bill 2009: would’ve made federal government in
favour of amending Marriage Act 1961 (Cth) → Greens in 2010 eliminated this Bill
 Since 2010, NSW, SA, etc: expressed support for same sex marriage legislation →
marriage is in federal government’s hand so only they can make reforms or new
legislations on marriage
Polygamous Marriages - marrying more than one person at a time
 Not legal in Australia 
 S6 Family Law Act 1975 (Cth): polygamous marriage entered into overseas demmed
to be marriage for purpose of children’s matters, property settlements and other court
proceedings 
 If polygamous marriage breaks down, parties can seek orders for child and/or
spousal maintenance, division of property and parenting plans
 Legal Rights and Obligations of Parents and Children
 Children are the most vulnerable in a family: require greatest legal protection
 Children are given greater protection through rights only when they are born and are
under 18
 Byron’s Law 2001: foetus killed in car accident → capable of being guilty of a child
who is not born
 Children and Young Persons (Care and Protection) Act 1998 (NSW):
responsibility of DoCS and others to protect and care for those at risk of harm or
abuse 
 Status of Children Act 1996 (NSW): rights of ex-nuptial children treated same as
within marriage including property
 5 Legal Responsibilities 
 Provide food and shelter
 Access to education
 Medical treatment
 Providing discipline (disallows striking on head, neck or closed fist)
 Protect children from harm and exposure to illegal activities
 Re Marion 1991
 13 yr old had intellectual and physical disabilities
 Parents applied to Family Court for a hysterectomy to relieve stress of menstruation 
  High Court held that parents would not authorise it without a court order
Legal Rights and Obligations of Parents and Children in International Law
 Protected by Children and Young Persons (Care and Protection) Act 1998 (NSW)
 CROC (Convention of the Rights of a Child) 1989: aimed to prevent child violence,
disrimination, exploitation and neglect
 Human Rights Equal Opportunity Act 1986 (Cth): allowed AHRC to hear
complaints regarding child abuse
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