Family law
Concept of family law
The family is the basic unit of society. Comprises a group of people related by birth or marriage.
Article 16 of the UDHR says “the family is the natural and fundamental group unit of society and
is entitled to protection by society and the state”.
Family originally had the function of reproducing itself by the birth of children through marriage.
The role of the family has changed in modern societies with the roles of men and women now
different.
- The blended family: two or more adults who share a household
- Same-sex family
- Single-parent family: one adult in the household
- De facto family: couple have not been married under law
- Nuclear family: ‘traditional family’
The description of the term ‘marriage’ used in the Family Law Act 1975 and the Marriage Act
1961 is based on the definition in the 19th century case of Hyde v Hyde and Woodmansee: “the
voluntary union for life of one man and one woman, to the exclusion of all others”
Legal requirements of marriage
Marriage Act 1961 (Cth) sets out requirements of valid marriage:
- Notice of intended marriage must be lodged no less than one calendar month and not
earlier than eighteen months
- Must be voluntarily entered into
- Must be of marriageable age (18)
- Must not be related
At the interview with the celebrant the couple will be required to produce:
- ID
- Birth certificate or birth certificate and passport
- If one partner is less than 18, parental consent and a magistrate or judge’s order is
required before they can marry
If the marriage is found to be invalid the court can nullify the marriage annulment means that
the marriage is deemed to have never taken place as it was illegal.
- There is an expectation the couple will love and support each other
- Only when that relationship experiences difficulties or breaks down does the law have a
role to play
, - Consortium vitae: the association as expecting mutual services and sexual intercourse.
Meaning it was possible to have sex with your spouse without consent. This was
overturned by the Crimes (Sexual Assault) Amendment Act 1981 NSW - meaning
marriage is no longer a defence to sexual assault
Hyde v Hyde established the common law definition of marriage: “the union of one man and one
woman, to the exclusion of all others”
Maintenance
Maintenance is an amount of money paid by a person to support his or her wife or husband or
former wife or husband.
- The Family Law Act provides that a person’s responsibility to financially assist his or her
spouse continues after divorce. This is known as spousal maintenance
- Child maintenance: under Family Law Act
- Property: at the end of the marriage it will be necessary to divide any property between
the husband and wife. The court will determine the amount each party receives if they
cannot agree.
Death and wills
If a spouse dies intestate (without a will) then the surviving spouse and any children will receive
the property.
A marriage revokes any will in existence before the marriage unless it is made in contemplation
of the marriage. A divorce now revokes any benefits to a former spouse that are contained in a
will.
- Agency: when another person acts on behalf of another (eg power of attorney)
Alternative family relationships
1. Aboriginal and torres strait islander marriages
2. Single parent families (23% of community)
3. Blended families (11%)
4. Same sex relationships
5. Polygamous relationships (only under immigration)
6. De-facto
Legal rights and obligations of parents and children
- In the 1800s children whose parents had died or were unable to care for them were left
to fend for themselves. Slowly a more progressive view prevailed.
- Legislation was introduced to remove children from families and place them in care when
their own family failed to protect them.
Even in the 21st century however the rights of children are still being compromised.
Concept of family law
The family is the basic unit of society. Comprises a group of people related by birth or marriage.
Article 16 of the UDHR says “the family is the natural and fundamental group unit of society and
is entitled to protection by society and the state”.
Family originally had the function of reproducing itself by the birth of children through marriage.
The role of the family has changed in modern societies with the roles of men and women now
different.
- The blended family: two or more adults who share a household
- Same-sex family
- Single-parent family: one adult in the household
- De facto family: couple have not been married under law
- Nuclear family: ‘traditional family’
The description of the term ‘marriage’ used in the Family Law Act 1975 and the Marriage Act
1961 is based on the definition in the 19th century case of Hyde v Hyde and Woodmansee: “the
voluntary union for life of one man and one woman, to the exclusion of all others”
Legal requirements of marriage
Marriage Act 1961 (Cth) sets out requirements of valid marriage:
- Notice of intended marriage must be lodged no less than one calendar month and not
earlier than eighteen months
- Must be voluntarily entered into
- Must be of marriageable age (18)
- Must not be related
At the interview with the celebrant the couple will be required to produce:
- ID
- Birth certificate or birth certificate and passport
- If one partner is less than 18, parental consent and a magistrate or judge’s order is
required before they can marry
If the marriage is found to be invalid the court can nullify the marriage annulment means that
the marriage is deemed to have never taken place as it was illegal.
- There is an expectation the couple will love and support each other
- Only when that relationship experiences difficulties or breaks down does the law have a
role to play
, - Consortium vitae: the association as expecting mutual services and sexual intercourse.
Meaning it was possible to have sex with your spouse without consent. This was
overturned by the Crimes (Sexual Assault) Amendment Act 1981 NSW - meaning
marriage is no longer a defence to sexual assault
Hyde v Hyde established the common law definition of marriage: “the union of one man and one
woman, to the exclusion of all others”
Maintenance
Maintenance is an amount of money paid by a person to support his or her wife or husband or
former wife or husband.
- The Family Law Act provides that a person’s responsibility to financially assist his or her
spouse continues after divorce. This is known as spousal maintenance
- Child maintenance: under Family Law Act
- Property: at the end of the marriage it will be necessary to divide any property between
the husband and wife. The court will determine the amount each party receives if they
cannot agree.
Death and wills
If a spouse dies intestate (without a will) then the surviving spouse and any children will receive
the property.
A marriage revokes any will in existence before the marriage unless it is made in contemplation
of the marriage. A divorce now revokes any benefits to a former spouse that are contained in a
will.
- Agency: when another person acts on behalf of another (eg power of attorney)
Alternative family relationships
1. Aboriginal and torres strait islander marriages
2. Single parent families (23% of community)
3. Blended families (11%)
4. Same sex relationships
5. Polygamous relationships (only under immigration)
6. De-facto
Legal rights and obligations of parents and children
- In the 1800s children whose parents had died or were unable to care for them were left
to fend for themselves. Slowly a more progressive view prevailed.
- Legislation was introduced to remove children from families and place them in care when
their own family failed to protect them.
Even in the 21st century however the rights of children are still being compromised.
