Background to the Family Law Act
The Family Law A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. 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 A voluntary, formal and legally binding agreement between two people to have a permanent relationship together. There must be a statement in front of official witnesses who register the marriage with the authorities. See also cohabitation; de facto; divorce; domestic relationship., The legal ending of a marriage by court order. A marriage is legally divorced when a court issues a decree absolute where there has been an irretrievable breakdown of the marriage. See also decree nisi. and ‘matrimonial causes’.
Until 1961, each state had its own law dealing with divorce and related issues (e.g. property, Money paid to a person to financially support them. When a couple has separated both parents have a duty to support their children, and a court can order a parent to make regular payments to support the children. Maintenance for a spouse is now less common, and must be applied for within 12 months of a divorce. It is usually covered in a final settlement of all property., Lawful control over a person which prevents them leaving. A person under arrest is in police custody and is not free to go. A person in prison is serving a custodial sentence that keeps them confined to the prison grounds. 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 An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate.. 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 In fact, rather than in law. Commonly used to refer to two people living together as a married couple but who are not legally married. They are sometimes said to be in a ‘de facto’ marriage or relationship. See also domestic relationship. 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:
- People wishing to divorce, obtain a property settlement, spousal maintenance or obtain an order for protection;
- People wishing to obtain a A court order for the care of children when their separated or divorced parents cannot reach agreement on a parenting plan. The order covers matters such as where the child will live, contact with the parents and financial support. for their children or orders in relation to the protection of their children;
- An unmarried mother wishing to obtain child-bearing expenses from the father of her child;
- Any other person with an ‘interest’ in the welfare of a child (e.g. grandparents); and
- A child.
Until 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 The authority of a court or tribunal to hear matters brought before it, based on some factor such as area or law, amount of money claimed, or geographic area. 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.