Australian family law is principally found in the federal ''
Family Law Act 1975
The ''Family Law Act 1975'' (Cth) is an Act of the Parliament of Australia. It has 15 parts and is the primary piece of legislation dealing with divorce, parenting arrangements between separated parents (whether married or not), property separ ...
'' and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 as well as in other laws and the
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...
and laws of
equity, which affect the family and the relationship between those people, including when those relationships end. Most family law is practised in the
Federal Circuit and Family Court of Australia and the
Family Court of Western Australia
The Family Court of Western Australia is a state court that deals with family law. It was established by the passing of the ''Family Court Act'' (WA, 1975) and commenced operation in 1976. It is a state family court under section 41 of the Comm ...
. Australia recognises marriages entered into overseas as well as divorces obtained overseas if they were effected in accordance with the laws of that country. Australian marriage and "matrimonial causes" are recognised by sections 51(xxi) and (xxii) of the
Constitution of Australia and internationally by
marriage law
Marriage law refers to the legal requirements that determine the validity of a marriage, and which vary considerably among countries. See also Marriage Act.
Summary table
Rights and obligations
A marriage, by definition, bestows ...
and conventions, such as the
Hague Convention on Marriages (1978).
Australia's laws on divorce and other legal family matters were overhauled in 1975 with the enactment of the ''
Family Law Act 1975
The ''Family Law Act 1975'' (Cth) is an Act of the Parliament of Australia. It has 15 parts and is the primary piece of legislation dealing with divorce, parenting arrangements between separated parents (whether married or not), property separ ...
'', which established
no-fault divorce
In a no-fault divorce the dissolution of a marriage does not require a showing of wrongdoing by either party. Laws providing for no-fault divorce allow a family court to grant a divorce in response to a petition by either party of the marriage ...
in Australia. Since 1975, the only ground for divorce has been irretrievable breakdown of marriage, evidenced by a twelve-month separation. However, a residual "fault" element remains in relation to
child custody
Child custody is a legal term regarding '' guardianship'' which is used to describe the legal and practical relationship between a parent or guardian and a child in that person's care. Child custody consists of ''legal custody'', which is the righ ...
and
property settlement
Division of property, also known as equitable distribution, is a judicial division of property rights and obligations between spouses during divorce. It may be done by agreement, through a property settlement, or by judicial decree.
Distributio ...
issues. The federal ''
Family Law Act 1975
The ''Family Law Act 1975'' (Cth) is an Act of the Parliament of Australia. It has 15 parts and is the primary piece of legislation dealing with divorce, parenting arrangements between separated parents (whether married or not), property separ ...
'' covers
divorce
Divorce (also known as dissolution of marriage) is the process of terminating a marriage or marital union. Divorce usually entails the canceling or reorganizing of the legal duties and responsibilities of marriage, thus dissolving the ...
,
children's orders,
property division,
spousal maintenance and related matters.
Annulment
Under the ''Family Law Act 1975'', a
decree of nullity can be made if a marriage is
void
Void may refer to:
Science, engineering, and technology
* Void (astronomy), the spaces between galaxy filaments that contain no galaxies
* Void (composites), a pore that remains unoccupied in a composite material
* Void, synonym for vacuum, a ...
.
[Dickey, A. (2007) ''Family Law'' (5th Ed)] Annulment does not involve termination of a marriage, but rather a declaration the purported marriage is in-fact
void
Void may refer to:
Science, engineering, and technology
* Void (astronomy), the spaces between galaxy filaments that contain no galaxies
* Void (composites), a pore that remains unoccupied in a composite material
* Void, synonym for vacuum, a ...
.
What constitutes a void marriage is determined by section 23 of the ''
Marriage Act 1961'' The distinction that existed before 1975 between void and
voidable marriage
A voidable marriage (also called an avoidable marriage) is a marriage that can be canceled at the option of one of the parties through annulment. The marriage is valid but is subject to cancellation if contested in court by one of the parties to ...
s no longer exists. In addition, the 1975 Act also abolished the legal concept of non-
consummation
In many traditions and statutes of civil or religious law, the consummation of a marriage, often called simply ''consummation'', is the first (or first officially credited) act of sexual intercourse between two people, following their marriage t ...
of marriage as a ground for annulment, so that a divorce application would need to be made.
A marriage is void if:
* one or both of the parties were already married at the time (i.e.
bigamy
In cultures where monogamy is mandated, bigamy is the act of entering into a marriage with one person while still legally married to another. A legal or de facto separation of the couple does not alter their marital status as married persons. I ...
)
* the parties are in a prohibited relationship (i.e. closely related such as
siblings
A sibling is a relative that shares at least one parent with the subject. A male sibling is a brother and a female sibling is a sister. A person with no siblings is an only child.
While some circumstances can cause siblings to be raised separat ...
)
* the parties did not comply with the marriage laws in the jurisdiction where they were married (note that although a marriage contracted abroad is in general considered valid in Australia, in certain cases, such as when there are serious contradictions with the marriage laws of Australia, the marriage is void)
* one or both of the parties were under-age and did not have the necessary approvals, (minimum
marriageable age is 16, but 16 and 17 years-olds need special court approval) or
* one or both of the parties were
forced into the marriage.
An application for a decree of nullity takes precedence over an application for divorce, so that if it is found that a marriage is void, then divorce application becomes irrelevant, though other remedies may still be available.
Recent cases
''Kallestad v Brodie''
In ''Kallestad v Brodie,'' the husband (Mr Kallestad) sought declaration that his marriage was void on the grounds that his wife (Ms Brodie) had previously been married to another person with that marriage still being live at the time Mr Kallestad was married to Ms Brodie. The Family Court of Australia found the marriage was void on the grounds Ms Brodie's original marriage was still valid at the time the second marriage was made.
''Bown v Jalloh''
In ''Bown v Jalloh,'' the wife (Ms Bown) sought declaration that her marriage was void on the grounds that her husband (Mr Jalloh) had not disclosed his full past to her and so she had married him on grounds of mistaken identity because his name was slightly different. Ms Bown had located a drivers licence issued in the county from where Mr Jalloh originated, which had his name written as 'Jalloph'. Ms Bown sought to end the marriage due to other personal matters about her husband he had not disclosed to her. However, the Family Court of Australia noted that misrepresentations that could induce consent to marriage relating to age, wealth, social status or other background were not relevant to whether or not Ms Brown consented to marry Mr Jalloh on the day she did, and so the application was dismissed.
Divorce
No-fault divorce
Australia has
no-fault divorce
In a no-fault divorce the dissolution of a marriage does not require a showing of wrongdoing by either party. Laws providing for no-fault divorce allow a family court to grant a divorce in response to a petition by either party of the marriage ...
with the only ground for divorce being a claim of an irretrievable breakdown of marriage, evidenced by a twelve-month
separation. Sometimes the couple may still be living together in the same home and be considered separated. If that is the case for any part of the twelve months before filing the application.
A sole applicant will need to file an affidavit providing evidence that there has been such separation. As well as an affidavit from an independent third party.
For a joint application both parties should file an affidavit, a third party affidavit is NOT needed in this case.
If the parties have
reconciled
''Put Your Hands Down'' is the debut studio album of Penal Colony, released in February 1994 by Cleopatra Records.
Reception
''Factsheet Five'' compared the music of ''Put Your Hands Down'' favorably to Hate Dept. and described Penal Colony as b ...
for 3 months or more, then the 12-month qualification period has to start anew.
Though the Commonwealth had the power since federation in 1901 to make laws affecting divorce and related matters such as custody and maintenance, it did not enact uniform national laws until 1961, when the ''Matrimonial Causes Act 1959'' came into operation. The Act continued the fault-based system operating under state authority. Under the Commonwealth law a spouse had to establish one of the 14 grounds for divorce set out in the Act, including adultery, desertion, cruelty, habitual drunkenness, imprisonment and insanity. In reality, the system was very expensive and humiliating for the spouses, necessitating appointment of barristers, often private detectives, collection of evidence, obtaining witness statements, photographs and hotel receipts, etc. Failure to prove a spouse's guilt or wrongdoing would result in a judge refusing to grant a divorce. The ''Matrimonial Causes Act 1959'' was replaced by no-fault divorce system of the ''Family Law Act 1975''.
Divorce application
Either party to a marriage may apply to the Federal Circuit and Family Court of Australia for a divorce, or both parties may apply jointly. However, an application for divorce cannot be filed before the expiration of at least two years since the marriage had been entered into. The application can be lodged online or using a hard copy form. A fee is payable. If the application is made by one spouse (called a "sole application"), the divorce documents must be served on the other spouse, at least 28 days before the court hearing if the spouse is in Australia or 42 days if overseas. The spouse can challenge the application in a "response", claiming, for example, that the timeframes set out in the Act have not been satisfied, or that the applicant is not an Australian citizen or resident, etc. The response must also be served on the applicant and filed in court. If both spouses agree to divorce a "joint application" is filed, which does not need to be served and no response can be made.
An application for divorce can be made in Australia if either spouse:
* regards Australia as their home and intends to live indefinitely in Australia and is an Australian citizen or resident, or
* is an
Australian citizen
Australian nationality law details the conditions in which a person holds Australian legal nationality. The primary law governing nationality regulations is the Australian Citizenship Act 2007, which came into force on 1 July 2007 and is applic ...
by birth or descent or is a naturalised Australian citizen (in which case a citizenship certificate will be required), or
* ordinarily lives in Australia and has done so for 12 months immediately before filing for divorce.
Neither spouse can remarry before the divorce becomes final, which is usually one month and one day after the divorce is granted in court. Such a marriage would constitute
bigamy
In cultures where monogamy is mandated, bigamy is the act of entering into a marriage with one person while still legally married to another. A legal or de facto separation of the couple does not alter their marital status as married persons. I ...
and would be illegal and void.
If there are children of the marriage aged under 18, a court can only grant a divorce if it is satisfied that proper arrangements have been made for them. A child of the marriage includes:
* any child of either spouse, including a child born before the marriage or after separation,
* any child adopted by the spouses or either of them, or
* any child who was treated as a member of the family prior to the final separation; for example, a step-child or foster child.
A copy of the marriage certificate must be provided with the application. The same rules apply if the marriage was entered into overseas, except that if the marriage certificate is not in English, an English translation must be provided, with an affidavit from the translator.
After the divorce is finalised, each party can apply to the Federal Circuit and Family Court of Australia (or the Family Court of Western Australia for residents of that state) for a proof of divorce certificate.
De facto couples
Since 1 March 2009 (1 July 2010 in South Australia), in all
states or territories except Western Australia, matters arising from separations of de facto relationships, such as child custody and property rights, are also covered by the ''Family Law Act'' under powers conferred to the Commonwealth by five of the states. Since 2009, the definition of "de facto couple" under the federal Act has included same-sex couples and applies throughout Australia, except Western Australia.
[ De facto relationships.] A de facto couple must cohabit for a minimum of two years for the Family Law Act to apply, unless if they have a child together, have registered the relationship, or have made significant contributions to the relationship. Parties to a de facto relationship have only two years after separation in which to file for property and/or spousal maintenance in the Family Court.
Before March 2009, state and territory laws applied to de facto relationships (and continues to apply in Western Australia). The names for de facto and similar relationships in each state and territory were/are as follows:
Recognition outside Australia
Because of how the power from state or territory to federal jurisdiction was conferred (see
Section 51(xxxvii) of the Australian Constitution
Section 51(xxxvii) of the Constitution of Australia (also called the referral power) is a provision in the Australian Constitution which empowers the Australian Parliament to legislate on matters referred to it by any state. As Australia is a fe ...
), de facto couples outside Australia are not covered by the ''Family Law Act''. This is because there must be a nexus between the de facto couple and a state or territory, as the law can only be applied within a state or territory.
[, and .] If a de facto couple moves out of an Australian state or territory they do not take the state or territory with them so the law cannot apply to them. The legal status and rights and obligations of the de facto or unmarried couple would then be recognised by the country's laws of where they are ordinarily resident. See the section on Federal Circuit and Family Court of Australia for further explanation on jurisdiction on de facto relationships. This is unlike marriage, which is legally recognised internationally outside of the country of marriage.
Laws affecting children
See
Parenting Law in Australia
Parenting or child rearing promotes and supports the physical, emotional, social, spiritual and intellectual development of a child from infancy to adulthood. Parenting refers to the intricacies of raising a child and not exclusively for a biol ...
.
The family law framework also deals with parenting arrangements to ensure the best interests of children,
[.] especially in circumstances where they are at risk or where their parents or carers are separating. Although child protection is primarily dealt with on a state and territory basis, under state and territory legislation, parenting arrangements could also be dealt with under the federal ''Family Law Act 1975''.
[ What this Division does.]
A government-administered child support scheme enables parents to reach private agreements, or to register with the
Child Support Agency Australia, which may require one parent to make payments to the other, depending on the division of care and on each parent's income, among other factors. Since 1989
child support
Child support (or child maintenance) is an ongoing, periodic payment made by a parent for the financial benefit of a child (or parent, caregiver, guardian) following the end of a marriage or other similar relationship. Child maintenance is paid d ...
has been assessed under the ''Child Support (Assessment) Act 1989'', administered by Child Support Agency Australia.
Australian domestic law also enacts some of Australia's obligations under international law, such as the
, which is dealt with in the ''Family Law Act 1975''.
On 22 May 2006, the ''Family Law Act 1975'' was amended by the ''Family Law Amendment (Shared Parental Responsibility) Act 2006'', which applies to any court matters involving children that were in court on or after 1 July 2006. The primary object of this law is to ensure that courts always have the "best interests of the child" as the paramount consideration.
[ ] An object of this law is to ensure that the best interests of children are met by ensuring that "children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child".
[(1)(a) Objects of Part and principles underlying it.] Many however argue that such an arrangement actually works against achieving this, and today continue to push for further reform. In the last decade not one Australian father has been given equal parenting access in any case reported on the Austlii website. Instead judges applied the McInstosh-Chisholm doctrine that sought to limit time children spend with children. This approach has now been debunked by academics, even though never challenged by any family court judge.
Property and financial outcomes
Australia is an
equitable distribution
Division of property, also known as equitable distribution, is a judicial division of property rights and obligations between spouses during divorce. It may be done by agreement, through a property settlement, or by judicial decree.
Distributio ...
country, meaning that on divorce or death of a spouse net wealth is not split evenly (50/50) as
community property. Instead courts have wide powers, taking into account 27 or so statutory factors, to determine what a "just and equitable" division of wealth would be. The vast majority of outcomes result in a division of 55-65% in favour of the wife, or economically weaker spouse, before payment of legal fees. This process is not without its critics: on average the wealth re-allocation process takes between 2 years, or for the more wealthy, up to 4 years.
Property Settlement
Under the Family Law Act a court can make orders dividing the assets, liabilities and superannuation of spouses, and other related orders. The court must approach the decision according to the "4 step process":
# ascertain the assets, liabilities and superannuation of the parties;
# assess the contributions that each party made to the asset pool;
# assess the relevant factors set out in section 75(2), often referred to as the "future needs" factors;
# consider whether the outcome is "just and equitable" and make any relevant adjustments.
The relevant date to ascertain the property "pool" is at the time of trial, not the time of separation.
Contributions made to the relationship include financial contributions (eg. income, inheritances, assets held at the commencement of the relationship), non-financial contributions (eg. unpaid labour, assistance running a business) and parenting and homemaker contributions (eg. domestic duties and care of children). Contributions as homemaker and parent are not presumed to be of lesser value than financial contributions.
Section 75(2) ("future needs") factors allow an adjustment to be made between the parties to take account of particular circumstances. Common relevant circumstances include the care of children, a disparity of income, and the impact on the relationship of time out of the workforce.
Under the Family Law Act, a court has the power to "split" superannuation from one spouse to another. A court can make orders for property settlement or spousal maintenance after the death of a party, but only if proceedings were commenced prior to the death of that party.
The court may decline to make any orders, leaving the legal and equitable interests of the parties as they were.
Spousal Maintenance
Parties to a marriage or a de facto relationship have the right to apply for spousal maintenance from the other party. The party making an application must demonstrate:
# his or her need for spousal maintenance, and
# that the other party has the capacity to pay spousal maintenance.
If made, an order for spousal maintenance is usually for a limited period to allow a party to retrain, return to the workforce or care for young children.
Binding Financial Agreements
Under Part VIIIA of the Family Law Act (for de facto couples: Division 4 of Part VIIIAB), parties may opt-out of the ability of the court to make orders in respect of property settlement or spousal maintenance by use of a valid Binding Financial Agreement. The effect of a valid Binding Financial Agreement is to prevent a Court making orders under Part VIII of the Family Law Act (or the corresponding de facto provisions), meaning that property will be divided and/or spousal maintenance will be dealt with in accordance with the provisions of the agreement. A Binding Financial Agreement can only be valid if both parties have received independent legal advice before the agreement was signed.
However, a recent Canstar study found that only 6% of Australian Couples have a Binding Financial Agreement in place, meaning over 90% of Australian couples once separated are still required to divide wealth according to what the family law act sees as "just and equitable".
A Binding Financial Agreement that attempts to limit a person's ability to claim for spousal maintenance will be invalid if the party was unable to support himself or herself without a pension when the agreement came into effect.
A Binding Financial Agreement may be set aside in limited circumstances.
Other actions abolished
Since 1975, the actions for
criminal conversation
At common law, criminal conversation, often abbreviated as ''crim. con.'', is a tort arising from adultery. "Conversation" is an old euphemism for sexual intercourse that is obsolete except as part of this term.
It is similar to breach of pro ...
, damages for
adultery
Adultery (from Latin ''adulterium'') is extramarital sex that is considered objectionable on social, religious, moral, or legal grounds. Although the sexual activities that constitute adultery vary, as well as the social, religious, and legal ...
and enticement of a party to a marriage have been abolished. Claims for damages for
breach of promise
Breach of promise is a common law tort, abolished in many jurisdictions. It was also called breach of contract to marry,N.Y. Civil Rights Act article 8, ยงยง 80-A to 84. and the remedy awarded was known as heart balm.
From at least the Middle ...
to marry were abolished by Section 111A of the ''
Marriage Act 1961''.
See also
*
Federal Circuit and Family Court of Australia
*
Marriage in Australia
*
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011
References
{{reflist
External links
Australian Family Law Act 1975Official website of the Federal Circuit and Family Court of AustraliaFederal Circuit and Family Court Rules 2021 (Cth)
Public policy in Australia