FAMILY

LAW

THE NATURE OF FAMILY LAW

The concept of family law
Family
o Family Law Act 1975 (Cth) definition
Fundamental group unit of society
Sometimes - responsible for care and education children
o ABS definition
Two or more persons
Related by blood, marriage, adoption, step or fostering
Usually resident in same household
o Law recognises family unit as a nuclear or extended family
Changing concept of family
o Families have become smaller - more nuclear
o Remain the basic unit of a family
o Law changes to accommodate alternative family units
State and federal jurisdiction
o Comes under both state and federal jurisdiction because of the division of power
o State
Same-sex couples - other than de facto relationships
Alternative family relationships
Child welfare - care and protection
The Children's Court
Surrogacy and IVF
Adoption
Criminal law e.g. domestic violence
o Federal
Marriage - including same-sex
Divorce
Guardianship, custody and maintenance of children - ex nuptial children since 1996
De facto relationship breakdowns - since 2008 (most states referred powers to federal
government - not WA)
o Issues
Neither state nor federal courts have the power to deal with all legal issues that happen
within families
Problem when dealing with domestic violence
ALRC 'Family Violence Inquiry' (2010) made recommendations on how to fix the system -
only some of such suggestions were adopted

Legal requirements of marriage
Validity of a marriage
o A valid marriage is
Legally recognised
If 'invalid', court can nullify the marriage --> annulment means the marriage never legally
took place
Children are still legally recognised
o 4 elements of a valid marriage - common law from Hyde v Hyde (1866)
Definition not in Australian statute law until 2004
Marriage Act 1961 (Cth) --> Marriage Amendment Act 2004 (Cth)
Family Law Act 1975 (Cth)
1. Marriage must be voluntary
o No person can be forced to marry under duress
Kreet v Sampir (2011) - Australian/Indian women forced into arranged marriage through
her father's threats against her boyfriend and his family --> VOID
Arranged marriage is allowed in Australia as long as both parties are consenting
 o It is a crime to coerce someone into getting married
Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act
2013
2. Marriage is for life
o Doesnt apply in Australia anymore
Family Law Act 1975 (Cth) --> allows for divorce on the grounds of an 'irretrievable
breakdown of marriage'
ABS 2012 - 2.2 divorces for each 1000 people in Australia
Figure is higher as it does not account for untraditional relationships e.g. de facto
3. Marriage is between a man and a woman
o Heterosexual unions are the only valid marriages
Marriage Act 1961 (Cth)
o Transsexual marriage also allowed if a new birth certificate is obtained to detail recognised sex
and sex-affirmation procedures are undergone
Re: Keven and Jennifer (2001)
4. Exclusion of all others
o Monogamy is the only valid form of marriage in Australia
Marriage Act 1961 (Cth)
o Polygamy is invalid and a crime known as bigamy
Other legal requirements of marriage - Marriage Act 1961 (Cth)
o Being of marriageable age - 18 and over
Children under 16 cannot marry under any circumstances
Persons 16-17 can apply for a 'grant of marriage' to a magistrate or judge 'under special
circumstances'
Circumstances must be 'so exceptional and unusual' to make the order --> not
pregnancy
o Not being within a prohibited relationship, either by blood or marriage
Cannot marry a close family relative --> also applies to adoptive relationships
o Giving 'notice of marriage'
1 month minimum before the marriage
Must provide proof of age and whether they have been married previously
o Having a legal marriage ceremony
Must be authorised by a marriage celebrant
Marriage certificate must be signed by bride, groom, and 2 witnesses over 18
A copy must be lodged with 'Births, Deaths and Marriages' within 14 days

Alternative family relationships
Aboriginal and Torres Strait Islander (ATSI) customary marriages
Features of this type of family
o Indigenous marriages dictated by tradition and culture
Girls often marry before 18
Polygamy
Consanguity --> closely related
May not be entirely voluntary - 'promised' to men
Legal issues and how the law responded
o Issues
Jackie Pascoe Case - underage sex with 'promised brides' breaches criminal law
Clash of culture and the law --> human rights and indigenous rights are in conflict
Internationally --> CROC vs UNDRIP
Tension between culture, human rights, and the law
o Legal response
ATSI customary marriages not recognised as valid --> do not comply with Marriage Act
1961 (Cth)
1986 ALRC recommendation implemented
Customary marriages have de facto status --> not marriage status
Non-legal issues
o Aboriginal tradition marriages = invalid and only de facto
 Relationships may be seen as having less social status
Potential for perception of discrimination
o Non-recognition of traditional way of life

Blended families
Features of this type of family
o Couple lives together (married or de facto) with children from previous relationships
Couple may also have children together
Two existing families joining
o ABS - 1/3 all marriages involve individuals marrying for the second time
Legal issues and how the law responded
o Issue 1 - Financial support for step-child when family breaks down
Law - no requirement to pay child support
Family Court can make a maintenance order if step-parent is deemed to have a duty
to the child (nature, length, circumstances)
Efforts must first be made to obtain maintenance from natural parents
o Issue 2 - Child custody when a parent dies
Law - Child may be adopted by step-parent = same legal rights as children born into that
parental relationship
o Issue 3 - What arrangement should be made to see other parents from previous marriage (not in
blended family)?
Law - See. Changing nature of parental responsibility
Non-legal issues
o Social and emotional difficulties
o Children may not accept new family
o Discipline of step-children

Single-parent families
Features of this type of family
o One parent and their children without a partner (death, separation/divorce, decision)
Fastest-growing type of family in Australia
AIFS - 22% families are headed by lone parents
1/4 children experience parents' separation before they are 18
Legal issues and how the law responded
o Issue 1 - Child support
On average - half the income of a family with two parents
Law - Child Support Scheme --> Child Support Act 1988 (Cth)
Enforce maintenance orders on parents who do not live with child
o Issue 2 - Shared parental responsibility
Law - 2006 --> 2008 = changes to family law system with new emphasis on shared
parenting
Non-legal issues
o Access to affordable housing
o Access to legal services
o Discrimination because of poverty
25% children with single parent live below poverty line
7.6% with two parents
o Legal response
Anti-Discrimination Act 1977 (NSW)
Women's Legal Resource Centres

De-facto relationships
Features of this type of family
o Two people live as a married couple without being legally married
70% of people live together before they are married
Legal issues and how the law responded
o De facto couples used to be under state jurisdiction