Nature

The concept of family law

Family
Family Law Act 1975 (Cth) definition
Fundamental group unit of society
Sometimes - responsible for care and education children
ABS definition
Two or more persons
Related by blood, marriage, adoption, step or fostering
Usually resident in same household
Law recognises family unit as a nuclear or extended family
Changing concept of family
Families have become smaller - more nuclear
Remain the basic unit of a family
Law changes to accommodate alternative family units
State and federal jurisdiction
Comes under both state and federal jurisdiction because of the
division of power
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
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)
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
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
 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
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
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
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
Heterosexual unions are the only valid marriages
Marriage Act 1961 (Cth)
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
Monogamy is the only valid form of marriage in Australia
Marriage Act 1961 (Cth)
Polygamy is invalid and a crime known as bigamy
Other legal requirements of marriage - Marriage Act 1961 (Cth)
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
Not being within a prohibited relationship, either by blood or
marriage
Cannot marry a close family relative --> also applies to adoptive
relationships
Giving 'notice of marriage'
1 month minimum before the marriage
Must provide proof of age and whether they have been married
previously
 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
T & C's
Law Reform
Changing social values
Legal and Non-Legal responses

Aboriginal and Torres Strait Islander (ATSI) customary marriages
Features
Dictated by tradition and culture
Marriage before 18 years old
Polygamy
Close relation
Oral records of marriage
May not be entirely voluntary
Girls are 'promised' to me
Marriage ceremony not done by a legal celebrant
Legal Issues
Does not comply with Marriage Act 1961 (Cth)
GIVEN DE FACTO STATUS
As of 1986, the Australian Law Reform Commission (ALRC
Report 31)
Promised brides may be in breach of criminal law where a girl is
sexually involved/raped by her adult husband: Jackie Pascoe case
International obligation: protection of children under CRC (1989) and
right to self-determination and enjoyment of culture under ICCPR
(1966)
Non-Legal Issues
Not recognizing traditional way of life
Discrimination
Demeaning customary marriage through de facto status

Single Parent Families
Features
One parent with his/her children without a partner
Fastest growing type of family in Australia
2011, 22% of families are headed by a lone parents: Australian
Institute of Family Studies (2013)
A quarter of children born to an intact couple experience their
parents separation by the time they are 18.
Legal Issues
Child support (half the income)
Child Support (Registration and Collection) Act 1988 (Cth)