S2 HISTORICAL BACKGROUND & CONSTITUTIONAL POWERS Flashcards
who has the power to make laws in regards to Family and Marriage?
It’s a concurrent law between state and commonwealth.
However, commonwealth law prevail state law.
which sec of constitution give Marriage power to Commonwealth?
Section 51 gives the Commonwealth specific power to make
laws with respect to marriage and divorce:
Section 51 (xxi) Marriage “Marriage Power”
Section 51(xxii) Divorce and matrimonial causes and in
relation thereto, parental rights, and the custody and
guardianship of infants “Matrimonial Causes Power”
Why should the Commonwealth Parliament have law making
power over the states in relation to marriage & divorce?
- Uniformity
- Avoid social division which could cause harm to the
community
what is matrimonial cause?
The Family Law Act s 4(1) defines ‘matrimonial causes’ as follows:
• Divorce and nullity proceedings
• Declarations of the validity of a marriage, divorce or annulment.
• Property
• Injunctive relief
• Maintenance agreements
where does commonwealth takes it’s power to make decision in regards to marriage?
1- Referral Power
2- Express and implied incidental power
what is a referral power?
‘referral power’ under s 51(xxxvii) of the Constitution enables commonwealth parliament to
make laws with respect to ‘matters referred by the state Parliament.
1988: NSW, Victoria, SA and Tasmania referred their jurisdiction over maintenance & residence of
children to the Family Court: Family Law Amendment Act 1987
1990: Queensland referred its powers
2009: All States except WA and SA referred their powers relating to de facto relationships: Family
Law Amendment (De Facto and Other Measures Act) 2008
when did FLA 1975 (cth) came into affect?
5th of January 1976
changes to Family court in 1987;
Family Court reduces the formality of proceedings so that the focus is on
resolution, not winning. Court environment became less threatening
do parents have the custody of their children or have responsibility of care?
16 December 1995: Family Law Reform Act 1995 is passed which moved away from
parental ‘rights’ to ‘responsibility’
does a party of a de facto relationship have the same financial/property right as a party of marriage?
Yes,
1 March 2008: Family Law Amendment Act introduced, in order to allow for determination of property
disputes where outside of marriage. Same sex and non-married
heterosexual couples given same property rights as married couples
