Case Study On Family – Problems In Family Relationships

Resource Description

My notes for the Family case study of problems in family relationships

Problems regarding family relationships

Divorce

What is divorce?

• Divorce is the legal dissolution of a marriage under Australian law.
• Divorce is governed by Part VI of the Family Law Act 1975 (Cth). Under this legislation, the Federal Circuit Court is given jurisdiction over divorce proceedings.

Requirements for divorce

• There no longer needs to be a specific reason cited for a divorce. Australia now has a ‘no-fault’ divorce regime.
• A couple only needs to show there has been an “irretrievable breakdown of the relationship, demonstrated by 12 months of separation”.
• The concept of ‘no-fault divorce’ was established by s. 48 of the Family Law Act 1975 (Cth).
• NFD is designed to encourage parties to amicably resolve their problems.
• It also enables a person to apply for divorce without their partner.
• By focusing on cooperation and conciliation, these reforms also reduce court stress.
• Prior to this, couples had to prove fault under the Matrimonial Causes Act 1959 (Cth): eg. Adultery, cruelty, insanity, etc.

12-month separation period

• A couple must be separated for at least 12 months before divorce can occur.
• The Federal Circuit Court must be satisfied that there is evidence of this before it will grant a divorce.
• The period of separation begins when one party tells the other they intend to leave the marriage. It does not matter if the other party does not want the marriage to end.
• The law does not force someone to stay in a relationship due to the feelings of the other party.
• There must also be no reasonable likelihood of resuming married life.
• Under s. 50 of the Family law Act 1975 (Cth), there is one period of reconciliation of up to three months during the separation period. This is known as the ‘kiss and make up clause’. This encourages reconciliation and the resolution of conflict.

Divorce in the first two years of marriage

• A couple wishing to dissolve a marriage in the first two years must attend family counselling before they can divorce.
• Once completed, they must provide a completed certificate with their Application of Divorce.
• If a party does not attend, they need the Court’s permission to apply for a divorce. They must file an affidavit to explain why they did not with attend with their divorce application. The affidavit will explain the special circumstances.

Effect of a divorce certificate

• Legally dissolves the marriage.
• Does NOT have any effect in relation to financial support, property distribution, or arrangements of children.