Family LawThe Nature of Family Law

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.

Nature of Family Law

Wide ranging area of law which covers care of children, property allocation when a marriage breaks down and domestic violence etc

Main Function of the Family: Care and Protection of its members

The Concept of Family Law

Traditional Present Australian Society

Nuclear Married Family ( Mother, Father & Children)

‘Children should be seen but not heard’

Couples should not live together unless married

De Facto Relationships

Same-sex Relationships

Single-parent Relationships

Blended families

Extended Families

Aboriginal and Torres Strait Islander customary marriages

Family Relationships

Why is it difficult to define a family? Outline the factors that have led to change

in our society for the development of alternative family relationships

Discussion Time

Marriage is ‘the union of a man and a woman to the exclusion of all others’ Marriage Act 1961 (Cth)

Based on the English Case Hyde V Hyde and Woodmansee (1866) ‘voluntary union for life of one man and one woman, to the exclusion of all others’◦ Marriage is voluntary, is for life (however having

legal right to divorce), must be different sexes and polygamy is illegal.

Legal Requirements of Marriage

Gender ◦ States that marriage involves only the union of man and

woman (s5) Marriageable age

◦ May marry at 18, if between 16 to 18 you must apply to a judge or magistrate (s12) for marriage authorisation. Only exceptional cases will be approved

Prohibited Relationships (consanguinity)◦ Cannot marry a blood relative (ancestor, descendant,

sibling) including adopted persons◦ Used to include Affinity Relationships (Through Marriage –

Uncle, Niece etc) however in 1975 this was abolished

Marriage Act 1961 (Cth)

Notice of Marriage◦ Couples must complete a notice of intended Marriage

form authorised by a marriage celebrant. Must include proof of age and whether they have been married previously

Requirements of a valid marriage ceremony◦ Authorised Marriage celebrant must perform the

ceremony and there must be two over 18 witnesses◦ Issue of a marriage certificate which is signed by the

husband, wife and two witnesses◦ One copy of the certificate must be lodged within 14

days

Void Marriages◦ Same- sex ◦ Consent was not given by one individual◦ One or both of the individuals was married

previously◦ One or both of the individuals were too young◦ Too closely related

If the court decides the marriage to be invalid, in the eyes of the law it is nullified

Mutual duties of husband and Wife◦ The law does not set out partners duties and

responsibilities. It does intervene where the marriage breaks down.

◦ Consortium – care and affection for each other Traditional belief – Unito Caro ‘the man and wife are one and

that one is the husband’◦ No Law against Adultery

Maintenance◦ Financial payment made by one spouse to contribute to

the care and welfare of other spouse and/or children◦ Spousal Maintenance is not automatic and may only be

granted for a limited period

Legal consequences and responsibilities of marriage

Property Rights◦ Marital home – can be purchased in equal or

unequal shares◦ Ownership is based upon who paid for it

Contracts◦ Contracts are not altered by marriage◦ Spouses cannot be held responsible for each

others debts

Wills◦ A document that states how a person intends to

have his/her property distributed after death Intestate – Person who does not leave a will Executor – person who administers the

estate(property) Family members can apply for a family provision

order to be included in the Will