Family Law

Question 1

Australia’s first marriage act- the marriage act 961
briefly what is it?

Answer 1

It makes marriage law uniform across the country and sets the minimum marriageable age as 18.

Question 2

what should you need if you want to get married in Australia

Answer 2

• not be married
• not be marrying a parent, grandparent, child, grandchild, brother or sister
• be at least 18 years old, unless a court has approved a marriage where 1 person is 16-18 years old
• understand what marriage means and freely agree to marry
• use specific words during the ceremony
• give a notice of intended marriage form to an authorised marriage celebrant at least 1 month and no more than 18 months before your wedding
• be married by an authorised marriage celebrant

Question 3

what do you not have to be to get married in australia

Answer 3

• an Australian citizen
• a permanent resident of Australia
If you are not an Australian citizen or permanent resident of Australia and you want to live in Australia after your marriage, you should find out about getting a visa- external site.

Question 4

what do you need to do before you get married

Answer 4

• complete a notice of intended marriage form - see the next tab
• give it to an authorised marriage celebrant at least 1 month (but not more than 18 months) before your wedding
Ask your authorised marriage celebrant if you need help with the form.
You can complete it if you are overseas and plan to get married in Australia.
If there is less than 1 month until your wedding, talk to your authorised marriage celebrant. You may be able to get married if a prescribed authority- external site approves it. Reasons for getting married in less than one month include:
• employment-related or travel commitments
• wedding or celebration arrangements
• medical reasons
• legal proceedings
• error in giving notice

Question 5

what does your authorised marriage celebrant need

Answer 5

• evidence of your date and place of birth (birth certificate or passport)
• identity (driver’s licence or passport)
• proof that a previous marriage has ended

Question 6

after you get married- three marriage certificates must be signed by:

Answer 6

• you and your spouse
• your authorised marriage celebrant
• two witnesses, who must be over 18 years old
Your authorised marriage celebrant will give you a certificate of marriage on the day.
This is a ceremonial certificate of your marriage.

Your celebrant must then (within 14 days of the marriage) submit your marriage paperwork to the registry of births, deaths and marriages- external site in the state or territory you got married in.

You should apply for a copy of your official marriage certificate from the registry- external site. You will need this if you want to change your name or prove that you are married.

Question 7

Overseas marriages cannot be:

Answer 7

• performed by an Australian-authorised marriage celebrant
• registered in Australia

Question 8

An overseas marriage is generally recognised in Australia if it:

Answer 8

• was a valid marriage in the overseas country, and
• would have been a valid marriage here
You may be able to use your overseas marriage certificate to prove that you got married. However, some states and territories don’t accept overseas marriage certificates if you want to change your name.

Question 9

notice of intended marriage

Answer 9

requires that a marriage shall not be solemnised unless a notice in writing of the intended marriage (this form) is given to the authorised celebrant performing the marriage

Question 10

marriage definition

Answer 10

the union of 2 people to the exclusion of all others, voluntarily entered into for life’.

Question 11

Define:
Polygyny
Polyandry
Bigamist
and 2 legal consequences for bigamy

Answer 11

Polygyny- when a man has more than one wife.
Polyandry- which a woman has more than one husband.
What is a bigamist- the crime of marrying someone while still legally married to someone else
What are the two separate legal consequences for bigamy- (7 years’ imprisonment)

Question 12

Voluntarily entered into:
Section 23B of the marriage act…

Answer 12

requires that there should be a genuine consent on the part of both parties. A marriage is void where the consent of marriage from wither party was not a real consent because;
1: it was obtained by duress
2: it was obtained by fraud
3: one of the parties did not know who they were really marrying or a mistake was made by one of the parties as they did not know a marriage ceremony was being performed
4: one of the parties was mentally incapable of understanding the nature and effect of the marriage ceremony

Question 13

what is duress

Answer 13

Duress is the use of force or the threatened use of forces. If threats are made by one party and the other party agrees to marry because of these threats, then a real consent does not exist.
However suicide threats are not considered void yet.

Question 14

Which two marriages are prohibited

Answer 14

between a person and an ancestor
between a person and their brother or sister(whether half blood or whole blood)

Question 15

Divorce- what is the only legal requirement for getting it and what happens when applying for one (no fault divorce)

Answer 15

The only legal requirement for getting a divorce is the ‘irretrievable breakdown’ of the marriage—proven by the husband and wife being separated for 12 months with no likelihood of getting back together.
Whenapplying for a divorce, your partner doesn’t have to agree, and the law doesn’t decide who is at ‘fault’ for the marriage breakdown.

Question 16

How many months before a marriage must a notice of intended marriage be lodged?
How many witnesses are required for a valid marriage?

Answer 16

One month before
2 witnesses over the age of 18

Question 17

what are prenuptial agreements

Answer 17

• Contracts to protect wealth of individual parties
• The Family Law Act 1975 (Cth) allows an Financial Agreement
• Agreement can be made – before, during, after marriage

Question 18

dissolution of marriage?

Answer 18

Dissolution of marriage is the legal process that terminates a marriage. Dissolution of marriage can be thought of as being similar to no-fault divorce - meaning that when a couple files for a dissolution, neither of them are required to show any evidence of wrongdoing.

Question 19

define annulement

Answer 19

a declaration that a marriage never existed between a man and a woman. if a marriage takes place and there are legal impediments then that marriage can be annulled. they are now referred to as declarations that the marriage was invalid.

Question 20

Fault system of divorce

Answer 20

‘Fault’ was synonymous with serious misconduct. There were 14 grounds for the grant of divorce. Divorce applications were often opposed, and parties would hire lawyers or private investigators to gather evidence.

Question 21

Grounds for divorce before the no fault system

Answer 21

adultery
desertion by either party for not less than two years
persistent refusal by a party to consummate the marriage
habitual cruelty
rape
being a habitual drunkard

Question 22

Which law changed the rules for divorce in 1975?
The new divorce law required one ground to be proven. What was that one ground needed to be proven for divorce?
How do the two parties prove that ground for divorce?

Answer 22

Family Law Act of 1975
‘irretrievable breakdown of the marriage’.
12 months separation period

Question 23

What is the co-habitation period?

Answer 23

When a separated couple recommence living together, in order to reconcile their marriage.

Question 24

How many attempts can the parties have to cohabitate without it affecting the 12 month separation
period?
How long can the parties attempt to cohabitate without it affecting the 12 month separation period?

Answer 24

1
up to 3 months

Question 25

8. If a marriage has not lasted more than two years what additional requirement is needed for a divorce?

Answer 25

• Attend counselling with a family counsellor or nominated counsellor to discuss the possibility of reconciliation with your spouse.
• If you have not attended counselling, seek permission of the Court to apply for a divorce.

Question 26

explain briefly the divorce procedure

Answer 26

apply for a divorce through the federal magistrates court
if marriage has not lasted over 2 years - there is requirement of counselling
2 year date starts from the time of marriage to the date of application for divorce

Question 27

divorce and children considerations

Answer 27

benefit of child having meaningful relationship with both parents
need to protect child from physical and psychological harm

Question 28

1:which two courts settle disputes concerning children
2:list 3 parenting orders other than living or spending time orders

Answer 28

1: federal circuit and family court
2:who the child will live with
how much time the child will spend with each parent and with other people
allocation of parental responsibility

Question 29

What is meant by “Age of Majority

Answer 29

“The age at which a person, formerly a minor or an infant, is recognised by law to be an adult, capable of managing his or her own affairs and responsible for any legal obligations created by his or her actions.”

Question 30

rights of children:
ownership of land
making wills
appointment as a trustee
shareholder and director of companies

Answer 30

A person under 18 can own land
A person under 18 lacks capacity to make a valid will
Exceptions when a minor is married or a court makes an order authorising a will
May be appointed as a trustee under a trust
Cannot exercise powers until the age of 18
May be a shareholder
May not be a director
FURTHERMORE
Children cannot sue or be used without a litigation guardian
Children may give evidence if they understand the nature & consequences of an oath

Question 31

The care of children: briefly explain

Answer 31

1. parents hold the prime responsibility for the care, welfare and upbringing of their children.
2. Courts are only inclined to interfere with the process when the child isn’t being provided with all that is necessary for him or her or the child is not being protected from dangerous situations.
3. However, in 1997, a new section was enacted, extending the duty of a person who has the care of a child under the age of 16 years, not only to provide the necessaries of life but to take precautions to avoid danger to the child and if the child is facing danger to remove the child from any such danger.
   NECESSARIES FOR SURVIVAL:
   The provision of necessaries includes the provision of adequate food, clothing, lodging and care and medical treatment
   The failure by a person who has the care of a child to allow a blood transfusion may result in a prosecution
   This 1997 amendment allows a person to use reasonable force by way of: correction, discipline, management and control towards a child or pupil, but it cannot amount to child abuse.

Question 32

What is child abuse?

Answer 32

It is any form of maltreatment by an adult, which is violent or threatening that harms the child.

Question 33

How are children protected from child abuse?

Answer 33

By child help lines and organisations
The Department of Children, Youth Justice and Multicultural Affairs (Child Safety) is the lead agency for child protection in Queensland.
State and territory governments are responsible for statutory provisions.

Question 34

HOW ARE CHILDREN PROTECTED FROM ABUSE
LIST THE STEPS ON WHAT HAPPENS WHEN SOMEONE REPORTS THEY ARE ABUSED.

Answer 34

There are two agencies in Queensland directly responsible for the protection of children. They are the Department of Communities, Child Safety and Disability Services and the Queensland Police Service.
Once a notification has been received, the department has its own investigative procedure. This involves speaking to the parents of the child, speaking to the child. and in some cases, sending the child for a medical examination. The Department will not ordinarily be involved where the report of abuse does not involve the child’s family. The police will become involved if an offence has been committed.
If a doctor suspects that a child is being abused, then the doctor has an obligation to notify the Department or the police of the suspected child abuse.
Cases are often referred to a Suspected Child Abuse and Neglect (SCAN) team for consideration. They are part of the child protection service. After investigation by the Department or by a SCAN team, if a conclusion is reached that a child has been harmed or the risk of harm is of such a severe nature that the Department considers that the child cannot be protected in the family unit, the Department can apply for an assessment order or protection order referred to later in this chapter.

Question 35

Child Protection Act 1999 (Qld) - Major Provisions

Answer 35

1. Protection of the person reporting harm to a child
2. Prohibition on identifying children and other parties
3. Types of orders that can be made

Question 36

What are four requirements for a valid will?

Answer 36

It must be signed by the testator
The signature of the testator must be made in the presence of at least two adult witnesses
The witnesses must attest and sign the Will in the presence of the testator

Question 37

. Give two examples of the exercise of undue influence which would make a will invalid.

Answer 37

person convincing a testator (will-maker) to favour that person to the detriment of others.
illness or frailty left the testator vulnerable to undue influence;

Question 38

What is testamentary incapacity?

Answer 38

a person’s competence to make or change a will

Question 39

Why is it prudent to appoint more than one executor of a will?

Answer 39

in case your first choice is unable to act for any reason when the time comes.

Question 40

What is an administrator?

Answer 40

If there is no executor able to act or if there is no will, the person appointed to carry out these duties

Question 41

. List the ways in which a will may be revoked.

Answer 41

Revocation by declaration in writing
Revocation by destruction.
Revocation by marriage.
Revocation by divorce.

Question 42

What is a codicil?

Answer 42

A codicil is a document used to make any alterations to your existing Will

Question 43

What is an intestacy and what is the purpose of the intestacy rules?

Answer 43

Intestacy Rules are in place to determine how your Estate will be distributed if you die without a valid Will