Family law Flashcards
1.1 | Outline the concept of family law.
The law governs behaviour in the context of the family, rights and
responsibilities regarding children and the disposition of property when a marriage breaks down.
Give some examples of family arrangements in Australia. Which is most common?
Couples with children (31.4% - 2021), blended families, “nuclear” families, De Facto couples, same-sex couples, couples without children, single-parent families, ATSI customary law marriages and extended family.
List 4 contemporary issues concerning family law.
Same-sex relationships, changing nature of parental responsibility, surrogacy & birth technologies and care & protection of children.
What Act established the legal requirements of a valid marriage?
Marriage Act 1961 (Cth.)
What Act sets out the legal
obligations and duties that marriage creates?
Family Law Act 1975 (Cth.)
What gives the federal government the power and authority to make laws governing marriage and divorce?
S51 (xxi) and (xxii) of the Constitution.
1.2 | Outline the legal requirements of marriage.
Must be 18 (can be exceptions for those between 16-18), cannot marry someone related by blood (to a “prohibited degree”) and intended marriage needs to be notified between 1-18 months from the wedding date. Proof of age and previous marriage status required.
List any other requirements for a valid marriage ceremony.
An authorised marriage celebrant, two witnesses, is signed by all parties and is lodged to the Registry of Births, Deaths and Marriages within 14 days.
What is the definition of marriage?
The union of two people to the exclusion of all others, voluntarily entered into for life.
What can end a marriage?
Only death or divorce.
Is marriage a state or federal responsibility?
Federal.
Scenario:
When “S” was 15, her family arranged for her to return to Egypt to marry a man that the family had selected for her. While “S” was very upset, she did not wish to anger her family. Thinking she had no alternative, she returned to Australia with her intended husband and they were married. 4 days after the wedding, her husband returned to Egypt and “S” applied to the Family Court for an annulment of the marriage.
Was this marriage valid?
No. The court said that “S” did not freely give her consent so the
marriage was invalid.
1.3 | List alternative family relationships.
These include: blended families, De Facto couples, same-sex couples, couples without children, single-parent families, ATSI customary law marriages and polygamous marriage.
Is polygamous marriage legal?
Not in Australia. However, in some Muslim countries it is recognised.
Is same-sex marriage legal?
Yes, it was legalised in 2017 and the Marriage Act was amended from “the union of man and woman” to “the union of two people”. Before this it was treated as a De Facto relationship.
What defines a De Facto relationship (Section s4AA of the Family Law Act)?
The partners aren’t married to each other, are not related by family and have been living together under a genuine basis for at least 2 years.
Do De Facto relationships have the same legal rights as married partners? What are these rights?
Yes. Property distribution, inheritance, workers compensation and rights after a relationship breakdown are granted to De Facto couples. Matters relating to the children of separated De Facto couples are heard in the Family Court.
What governs property settlements and maintenance orders for De Facto couples who are separating?
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth).
Do step-parents have the same legal responsibilities to their partner’s child?
No. They are not legally responsible & don’t have same rights of discipline (this power rests with natural parents). Similarly step-children don’t have an automatic claim to estates, they have to prove dependency.
What is an ATSI customary marriage?
An arranged marriage that is bound by traditions and enforced through customary law.
Are ATSI customary marriages legally recognised in Australia?
Not formally. But, an ALRC report in 1986 endorsed legally recognising these marriages to ensure the legitimacy of the children, protect the property and finances and allow partners access to workers compensation.
Why have single parent families become more common?
A change in social attitudes towards “unwed mothers”, increased divorce rates and greater financial independence of women. But, both parents still have the responsibility to ensure children are cared for.
What LCMDI examples support single parent families?
Increased government assistance under the Child Support (Assessment) Act 1989 (Cth) and under Child Support Scheme & Family Law Act, children have a right to know & to be cared by both parents.
