Nature of family law 1


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Nature of family law 1

  1. 1. The Nature of Family Law
  2. 2. Themes and Challenges  The role of the law in encouraging cooperation and resolving conflict in regard to family  Issues of compliance and non-compliance  Changes to family law as a response to changing values in the community  The role of law reform in achieving just outcomes for family members and society  The effectiveness of legal and non-legal responses in achieving just outcomes for family members.
  3. 3.  Wide ranging area of law which covers care of children, property allocation when a marriage breaks down and domestic violence etc  Main Function of the Family: Care and Protection of its members
  4. 4. Traditional Present Australian Society Nuclear Married Family ( Mother, Father & Children) ‘Children should be seen but not heard’ Couples should not live together unless married De Facto Relationships Same-sex Relationships Single-parent Relationships Blended families Extended Families Aboriginal and Torres Strait Islander customary marriages
  5. 5.  Why is it difficult to define a family?  Outline the factors that have led to change in our society for the development of alternative family relationships
  6. 6.  Marriage is ‘the union of a man and a woman to the exclusion of all others’ Marriage Act 1961 (Cth)  Based on the English Case Hyde V Hyde and Woodmansee (1866) ‘voluntary union for life of one man and one woman, to the exclusion of all others’ ◦ Marriage is voluntary, is for life (however having legal right to divorce), must be different sexes and polygamy is illegal.
  7. 7.  Gender ◦ States that marriage involves only the union of man and woman (s5)  Marriageable age ◦ May marry at 18, if between 16 to 18 you must apply to a judge or magistrate (s12) for marriage authorisation. Only exceptional cases will be approved  Prohibited Relationships (consanguinity) ◦ Cannot marry a blood relative (ancestor, descendant, sibling) including adopted persons ◦ Used to include Affinity Relationships (Through Marriage – Uncle, Niece etc) however in 1975 this was abolished
  8. 8.  Notice of Marriage ◦ Couples must complete a notice of intended Marriage form authorised by a marriage celebrant. Must include proof of age and whether they have been married previously  Requirements of a valid marriage ceremony ◦ Authorised Marriage celebrant must perform the ceremony and there must be two over 18 witnesses ◦ Issue of a marriage certificate which is signed by the husband, wife and two witnesses ◦ One copy of the certificate must be lodged within 14 days
  9. 9.  Void Marriages ◦ Same- sex ◦ Consent was not given by one individual ◦ One or both of the individuals was married previously ◦ One or both of the individuals were too young ◦ Too closely related If the court decides the marriage to be invalid, in the eyes of the law it is nullified
  10. 10.  Mutual duties of husband and Wife ◦ The law does not set out partners duties and responsibilities. It does intervene where the marriage breaks down. ◦ Consortium – care and affection for each other  Traditional belief – Unito Caro ‘the man and wife are one and that one is the husband’ ◦ No Law against Adultery  Maintenance ◦ Financial payment made by one spouse to contribute to the care and welfare of other spouse and/or children ◦ Spousal Maintenance is not automatic and may only be granted for a limited period
  11. 11.  Property Rights ◦ Marital home – can be purchased in equal or unequal shares ◦ Ownership is based upon who paid for it  Contracts ◦ Contracts are not altered by marriage ◦ Spouses cannot be held responsible for each others debts
  12. 12.  Wills ◦ A document that states how a person intends to have his/her property distributed after death  Intestate – Person who does not leave a will  Executor – person who administers the estate(property)  Family members can apply for a family provision order to be included in the Will