The law relating to divorce and property settlements now covers de facto relationships and demands the parties undertake dispute resolution before filing for divorce. The only ground for divorce is irretrievable marriage breakdown; certain conditions, for instance around separation, must be met.

Contributor

Noah Eidelson

Barrister

Family Law Act

Last updated

1 July 2021

Background to the Family Law Act

The Family Law Act 1975 (Cth) (‘FL Act’) applies in every state and territory in Australia because federal parliament, under the Australian Constitution (s 51(21), 51(22)), has the power to make laws about marriage, divorce and ‘matrimonial causes’.

Until 1961, each state had its own law dealing with divorce and related issues (e.g. property, maintenance, custody and access). Then the Matrimonial Causes Act 1959 (Cth) (‘Matrimonial Causes Act’) came into operation and for the first time there was just one law throughout Australia for these matters. Grounds for divorce (e.g. adultery) were, with one exception, based on the ‘fault’ of either husband or wife.

The exception and the major innovation in the Matrimonial Causes Act was the introduction of a ‘no fault’ separation ground. After being separated for five years, a spouse could obtain a divorce without proving fault on the part of the other spouse.

The FL Act replaced the Matrimonial Causes Act.

Overview of the Family Law Act

Under the FL Act, the only ground for divorce is that the marriage has broken down irretrievably (see ‘What are the grounds for divorce?’, below).

The FL Act established the specialist Family Court. This court was intended to be a ‘caring’ court that dealt with marriage breakdown as simply and sensitively as possible.

The FL Act now deals with divorce, property, maintenance, and parenting orders. It provides ways of getting protection from personal violence and preventing disposal of property (see ‘Injunctions’, below). It has been amended several times; for example, to extend its operation to all children and to the property division of people who are not legally married but who had been in a de facto relationship.

The spirit of the FL Act and its rules, regulations and hierarchical administration is to endeavour to conciliate and negotiate disputes in their early stages.

Who can use the Family Law Act?

The following people can use the FL Act:

  1. People wishing to divorce, obtain a property settlement, spousal maintenance or obtain an order for protection;
  2. People wishing to obtain a parenting order for their children or orders in relation to the protection of their children;
  3. An unmarried mother wishing to obtain child-bearing expenses from the father of her child;
  4. Any other person with an ‘interest’ in the welfare of a child (e.g. grandparents); and
  5. A child.

Until relatively recently, only married couples (or couples who were married and since separated) could use the Family Court or Federal Circuit Court to sort out arguments over property or maintenance for themselves. Property disputes between people who were, or who had been, living in a de facto relationship were required to be commenced in the state courts, since without a marriage the FL Act did not provide jurisdiction to the court to hear their disputes. 

However, property disputes between unmarried couples who had previously been in a de facto relationship may now be heard under the FL Act if the couple separated after 1 March 2009. These ‘de facto’ relationships include same-sex relationships. The new laws enable de facto couples to access the Family Court and the Federal Circuit Court for property and spousal maintenance. Separated de facto couples can now apply for orders regarding the distribution of property or financial resources such as superannuation, partner maintenance and disputes about binding financial agreements.

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