Family Law Exam (marriage)

Question 1

Define marriage (…using section of legislation..)

Answer 1

Marriage in Australia is the legal process involved in getting married. Section 46 of the Marriage Act 1961 (Cth) defines marriage as the Union of a man and woman to the exclusion of all others, voluntarily entered into, and for life.

Question 2

Under what legislation is marriage regulated

Answer 2

The Marriage Act 1961

Question 3

Determine a case law that takes precedent for marriage.

Answer 3

Hyde vs. Hyde 1866.

Hasn’t changed since then

Question 4

Explain element one of Marriage

Answer 4

Under s46 the first element is ‘union of a man and woman’. This element confirms that marriage in Australia is a status only available to heterosexual relationships.

Question 5

What are some current issues with the first element of Marriage.

Answer 5

The first element of Marriage is Union of a man and women, this can lead to many issues, such as gay marriage, multiple wives, or when someone doesn’t identify as either a man or woman.

Question 6

Establish two cases relating to the first element of marriage. Briefly explain their importance.

Answer 6

Corbett vs. Corbett (1971) established that the gender you were born with, is what you are regulated under with the Marriage Act.

Secondly, the case of RE Kevin (2001) FLC determined that if transsexual men and woman have had full transitional surgery they will be regulated under the gender they align with.

Question 7

Explain element two of marriage.

Answer 7

Element two of marriage is excluding others. This means a marriage can involve only one man and woman. A person who undergoes a marriage ceremony when already married to someone else commits the offence if bigamy under S360 of the Criminal Code, and could receive up to 7 years imprisonment.

Question 8

Explain polygamous and polyandrous marriages in relation to element two of marriage.

Answer 8

In other cultures it is legal to have a polygamous marriage (man has multiple wives) or a polyandrous marriage (woman has multiple husbands. However, under element 2 these marriages would not be legal if conducted in Australia, on the other hand, Australian Law recognises some foreign marriages, and amendments to the Marriage Act have limited the types of marriages Australia will recognise.

Question 9

Explain element three of marriage.

Answer 9

Element three means the marriage is voluntarily entered into. Section 23B of the Marriage Act requires that there be a genuine consent on the part of both parties. Consequently, if the marriage is not voluntarily entered into freely by both parties it will not be valid.

Question 10

Establish cases in relation to element three of marriage.

Answer 10

The following cases are examples of when the court has considered whether the marriage was entered into voluntarily or not:

• Cooper vs. Crane (1891)
• Buckland vs. Buckland (1968)
• Marriage of S (1980) FLC

Question 11

Explain when a marriage can be void in relation to element three of marriage.

Answer 11

Element three means the marriage was entered into voluntarily, therefore if consent was obtained through either duress, fraud, there was a mistake by one of the parties as to who they were marrying or didn’t realise it was a marriage ceremony, or if one of the parties lacked the mental capacity to understand the nature of the effect of a marriage ceremony, the marriage will be void.

Question 12

what is duress (element three)

Answer 12

the use of force or threatened use of force. if threats are made by one party and the other person agrees to marry because of these threats, the marriage is void

Question 13

explain what is meant my obtaining consent via fraud

and identify a case relating to fraud

Answer 13

fraud occurs when one person induces the other person by telling them an untruth about some fact. An important case relevant to element three of marriage, in particular fraud, is that of Hosking vs. Hosking (1995) FLC. This case established that the a judge is not concerned with reasons for marriage.

Question 14

explain what is meant by a mistake being made by one of the parties

Answer 14

A person may make a mistake about marriage that is so serious, like fraud, meaning they did not give true consent to marriage

Question 15

explain what is meant by being mentally incapable to understand the implications of a marriage ceremony

Answer 15

If a man or woman is mentally incapable of understanding the nature and effect of the marriage ceremony than that person cannot be said to have given real consent to be married

Question 16

explain element four of marriage

Answer 16

Section 46 of the Marriage Act outlines the fourth element of marriage; for life. The definition of marriage outlines that marriage is for life, however divorce statistics highlight that this is not always the case

Question 17

explain and identify the formal requirements for marriage

Answer 17

the law on formal requirements for marriage is found in case law and the Marriage Act. The formal requirements of marriage are:

• marriageable age
• pre-marriage counselling
• prohibited relationships
• the marriage ceremony
• effect of ceremony

Question 18

explain ‘marriageable age’ (formal requirements for marriage)

Answer 18

the law sets outs out that the minimal age for both a male and female to get married is 18 years old. However, the exception to this rule is that the court can make an order allowing a couple to be married where one of them is under 18, and the other person is over 18. The court will considered the maturity of the couple and their understanding of the commitment involved in marriage. An important case for marriageable age is K v Cullen (1994)

Question 19

explain ‘pre-marriage counselling’ (formal requirements for marriage)

Answer 19

It is not a legal requirement that couples go to counselling before marriage, however many couples benefit. The purpose of pre-marraige counselling is to make the couple think of issues before they commit and ensuring they are compatible.

Question 20

explain ‘prohibited marriages’ (formal requirements for marriage)

Answer 20

Two people cannot be married if they are in a prohibited relationship. Section 23(1)(b) of the Marriage Act defines a prohibited relationship as;
○ Between a person and an ancestor or descendant of the person;
○ Between a brother and sister (including half-siblings);
○ Relationships that are only created through marriage aren’t restricted

Question 21

explain ‘the marriage ceremony’ (formal requirements for marriage)

Answer 21

There are no restrictions on where or when a marriage can take place, however, it must be conducted by a celebrant

Question 22

what is a celebrant (‘the marriage ceremony’ - formal requirements for marriage)

Answer 22

S41 of the Marriage Act requires the ceremony to be conducted by an authorised celebrant (a person who is authorised to conduct a marriage ceremony). Written notice must be given to the celebrant one month prior to the date of intended marriage, supply birth certificates and complete a statutory declaration that states they are not currently married.

Question 23

explain ‘effects of ceremony’ (formal requirements for marriage)

Answer 23

the ceremony creates rights and responsibilities of both parties to marriage. In light of this, newlyweds should make a new will. Often the wife will adopt her husbands surname (not a legal requirement)

Question 24

explain cancelled marriage plans (effects of ceremony - formal requirements for marriage)

Answer 24

prenuptial agreement often occurs when one party has a lot of money. Section 90B of the Marriage Act, inserted in 2000, allows couples to a prenuptial agreement on issues such as; division of assets, and maintenance of either party during or after the marriage ends.

Question 25

what is cancelling a marriage

Answer 25

In exceptional cases, one party to the marriage may go to the court to have the marriage cancelled, this is often on the basis that they have suffered fraud in relation to the marriage process. Section 23B of the MA states that a marriage will be void of the consent of wither party of the marriage is not real because of fraud

Question 26

Define Divorce

Answer 26

Legally recognizing the ending a marriage

Question 27

explain the ‘law’ related to divorce

Answer 27

divorce is regulated under the Family Law Act 1975 (Cth). Australia has a no-fault system which came in 1975, and under Section 48(1) a party can claim the marriage ‘irretrievably broke down’. This can be proven if the couple has been living separate for 12 months (Section 48(2).

Question 28

What is Decree Nisi

Answer 28

the court proceeding for a divorce - occurs after the 12 months and one day of seperation

Question 29

What is Decree Absolute

Answer 29

Decree absolute means the marriage is over (dissolved) - this occurs one month and one day after Decree Nisi. After Decree Absolute occurs, a divorce certificate can be issued

Question 30

What are the grounds for a divorce in Australia

Answer 30

the grounds for a divorce are:

• irretrievable breakdown
• lived separately and apart
• resumption of cohabitation
• no likeliness of cohabitation being resumed
• application for divorce
• further requirements (children)

Question 31

What is meant by ‘irretrievable breakdown’ (grounds for divorce)

Answer 31

This means that the court must be satisfied that there is no reasonable likelihood that cohabitation will be resumed, and the only evidence required to prove this ground is that the parties have been living apart for 12 months

Question 32

what is meant by ‘lived separately and apart’ (grounds for divorce)

Answer 32

this means that the parties have lived separate and apart during the 12 month period of separation. This does not always mean they have to live in separate houses, but that is often the case.

Question 33

what is meant by ‘resumption of cohabitation’ (grounds for divorce)

Answer 33

during the 12 months of separation, the parties are given the opportunity, under section 50 of the FLA, to attempt to reconcile for up to 3 months. This means that if any attempt of reconciliation is not successful, then the parties can still count the time before the attempted reconciliation as part of their 12 months separation.

Question 34

what is meant by ‘no likeliness of cohabitation being resumed’ (grounds for divorce)

Answer 34

this means that the court must be satisfied that there is not likeliness of of either party living together again

Question 35

what is meant by ‘application for divorce’ (grounds for divorce)

Answer 35

Either an individual or a joint application can be made for divorce the day after the 12 months’ separation period has elapsed, to the Federal Magistrates Court

Question 36

what is meant by ‘further requirements’ (grounds for divorce)

Answer 36

Court must be satisfied that proper agreements have been made for the care, welfare and development of children, otherwise counselling will be ordered

Question 37

what law (and section of law) governs divorce and children 
- what does it say

Answer 37

Section 60B of the Family Law Act 1975 (Cth) ‘ensures that the best interests of the child are met.’

Question 38

livvhow are the best interests of the child achieved:

Answer 38

under 60B of the FLA, the best interests of a child are achieved by;

• children having the benefit of both parents being meaningly involved in the child’s life
• protect child from physical and physiological harm
• children receive adequate parenting
• parents fulfill their duties and obligations

Question 39

what courts deal with disputes concerning children

Answer 39

the Family Court of Australia, or the Federal Magistrates Court

Question 40

what is SHARED PARENTAL RESPONSIBILITY

Answer 40

It is all the duties, powers, responsibilities, and authorities which by law, parents have in relation to children

Question 41

what is RESIDENCE

Answer 41

whom the child lives with (used to be custody)

Question 42

what is CONTACT

Answer 42

whom the child spends time with and communicates with (used to be access)

Question 43

what is SPECIFIC ISSUES

Answer 43

parental responsibility (used to be called guardianship)

Question 44

explain updates made to the FLA (and what they relate to)

Answer 44

in relation to disputes concerning children, current updates to the FLA ensure that children spend equal, or at least substantial time with both parents (provided this is not against the best interest of the child). The update also includes that being a parent is a responsibility which should be shared and so parents should consent and agree on major issues concerning their child

Question 45

what presumptions are made under FLA and what do they relate to

Answer 45

in relation to section 60B, the FLA now contains a principle that MUST be applied unless circumstances warrant it being set aside. The presumption is that it is in the best interest of the child for the parents to have equal shared responsibility except where there has been violence or abuse

Question 46

what are the three options when disputes arise over children

Answer 46

1. both parents reach an agreement over all matters
2. parents agree on matters and file the agreements with the court
3. go to court

Question 47

explain option one for disputes over children

Answer 47

The first option for dealing with disputes over children is when both parents reach an agreement over all matters. This means no legal advise is required. However, these agreements are not legally binding, and therefore there are not legal consequences of the agreement is breached.

Question 48

explain option two for disputes over children

Answer 48

If both parents are unable to reach an agreement between themselves, they will have to use mediation to assist in reaching an outcome. This outcome is known as a parenting order. If the parenting order is breached, both parties are protected by law, however mediation can be both timely and expensive.

Question 49

explain option three for disputes over children

Answer 49

If all other options are exhausted, then an application can be made to go to court, in which a judge decides the outcome. In considering the child’s best interests, a judge will consider; who the child resides with, how much time the child will spend with each parent, allocation of parental responsibility, methods of communication, and any other aspects.

Question 50

What is child support

Answer 50

child support is money provided by the non-resident parent.

Question 51

Explain what processes can be taken for disputes concerning properties

Answer 51

when a marriage breaks down, decisions must be made about the dividing of property between parties. This can be done by either agreements, consent orders, financial agreements, or having a court decide.

Question 52

explain the first option with regards to disputes concerning properties

Answer 52

An agreement for disputes concerning properties, is similar to the process involved in resolving disputes over children. An agreement for the division of properties includes both parties agreeing to resolve the division of properties between themselves. Many problems could arise with making an agreement between both parties, without legal intervention, such as an agreement made without court approval cannot be enforced.

Question 53

explain the second option with regards to disputes concerning properties

Answer 53

The parties, can if they agree for the division of property, have orders made by the consent of the court, this is referred to as consent orders. They are often are simply filled in, signed by the parties, and filled in the court, and are subject to be approved and checked by deputy registers. Consent orders are final orders and have the same force as if they had been made by the court.

Question 54

explain the third option with regard to disputes concerning properties

Answer 54

The third option for resolving disputes about property, are financial agreements. Financial agreements are written agreements entered into by both parties to resolve the division of property. For a financial agreement to be binding, it must be in writing, be signed by both parties, be between two people who are contemplating marriage, married, or separating. Financial agreements must also include a signed statement from each party stating that their attained individual legal advice.

Question 55

explain the advantages and disadvantages of financial agreements

Answer 55

A major advantage of financial agreements is that they are made between husband and wife, without any court intervention, however because of this, there is no place in which they can be registered