Summarised Notes on Family Law

Resource Description

Principal Focus: Students investigate the legal nature of family relationships and the effectiveness of the law in achieving justice.

Themes and Challenges

The role of the law in encouraging cooperation and resolving conflict in regard to family

Issues of compliance and non-compliance

Changes to family law as a response to changing values in the community

The role of law reform in achieving just outcomes for family members and society

The effectiveness of legal and non-legal responses in achieving just outcomes for family members

 

The Nature of Family Law

The Concept of Family Law

“Discuss the difficulty of defining family and the changing concepts of family”

• Family law comprises all the laws that deal with the relationship between family members and the rights and responsibilities of people in families
• Society makes the following assumptions about the role of the family:
  • Parents are responsible for the upbringing of their children
  • Parents act as role models for their children
  • Members of the family offer emotional and financial support to each other
• It is difficult to define family because there are many kinds of relationships in Australia which are regarded as a family:
  • Nuclear Family: Refers to a husband, wife, and their children. This accounts for 46% of all households in 2006
  • Couples without children: 38% of all households
  • De facto Couples: With or without children (15%). This is the case when a couples lives together as a married couple, without being legally married
  • Blended families: Refers to married or de factor couples with children from previous relationships
  • Extended family: A family with other relatives, besides parents and children, living in the same household
  • Single–Parents Families: Families in which there is one parent raising children
  • Same–Sex Couples: With or without children, accounts for 20000 Australian couples of the same gender who live in the same household
  • Aboriginal and Torres Strait Islander Customary Law Marriages
• There are also various ways children can be brought into a family:
  • Natural conception of both adults in the family
  • Related to only one of the adult couple they live with/Stepchildren
  • The product of artificial reproductive technologies
  • Adoption/Fostering Children
• Article 23 of the International Covenant on Civil and Political Rights states: “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”
• Australia’s Family law Act 1975 (Cwlth) at s. 43(a) defines the family as “the natural and fundamental group unit of society especially in relation to the upbringing of children.”

Legal Requirements of Marriage

“Outline the legal requirements of a valid marriage”

• Under s. 51 of the Constitution, the Commonwealth is given power to make laws about marriage and divorce, with the definition contained in the Marriage Act 1961 (Cwlth)
• There are four legal characteristics stated in the definition of a marriage:
  • It must be a voluntary union… (“Australian convicted for marrying off 12-year old daughter” – April, 2015, Daily Telegraph)
  • between a man and a woman…: a relationship between two people of the same gender cannot be legally binding in Australia (see Corbett v Corbett [1970] 2 WLR 1306 and re Kevin [2001] FCA 1074. It was held that it is the sex of a person on their wedding day that determines whether the requirements of a valid marriage is met. This allows for those who have gone through sex changes to get married and live life as a gender of their choice)
  • to the exclusion of all others…
  • for life.
• There are three major requirements for a marriage to be legally recognised

• With marriage, neither part is compelled to engage in sexual intercourse, under the Crimes (Sexual Assault) Amendment Act 1981 (NSW), where sexual assault in a marriage was considered a crime

Legal Consequences of a Marriage

Consortium Vitae	Though not legally obligated , it is expected for the husband and wife to mutually care and show affection with one another
Maintenance	Both spouses have a duty to support the other. The Child Support (Assessment) Act 1989 (Cwlth) provides child maintenance payments to be automatically deducted from the salary of the parent not living with the children
Property Rights	At divorce, it is usually split equally unless children are involved
Agency	Spouses are generally not responsible for the debts of the other
Wills	If a person dies without a will, they are said to die intestate. The Succession Act 2006 (NSW) and Family Provision amendment of 2008 are applied; the spouse being the first